Pratap Singh vs State Of U P And 4 Others
2022 Latest Caselaw 20955 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37
 

 
Case :- WRIT - A No. - 20787 of 2022
 

 
Petitioner :- Pratap Singh
 
Respondent :- State Of U P And 4 Others
 
Counsel for Petitioner :- Srijan Mehrotra
 
Counsel for Respondent :- C.S.C.,Ravi Prakash Pandey
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel appearing on behalf of the respondent nos.1 and 2 and Sri Satendra Tripathi, learned counsel appearing on behalf of the respondent nos.3 to 5.

2. This petition has been filed by the petitioner challenging the order dated 02.01.2007 and for a direction to the respondent, particularly the respondent no.4 to act in accordance with law and to regularize the services of the petitioner and to adequately compensate with backwages and benefits for the services rendered by him.

3. I have heard learned counsel for the petitioner at length and have perused the pleadings on record.

4. It appears that the petitioner was working on daily wage basis in Ghaziabad Development Authority since 1989. He filed a writ petition along with 13 other petitioners, namely Writ Petition No.30636 of 1993 (Omvir Singh and others Vs. G.D.A. and others) wherein this Court granted an interim order on 02.09.1993 restraining the Authorities from terminating the services and that they be paid their salary. The said writ petition was dismissed for want of prosecution sometime in 1996 and the petitioner and others were not allowed to continue after 27.09.1996. A recall application was filed which was allowed by this Court on 13.10.2006 and the writ petition was disposed of referring to regularization of the petitioner nos.2, 3 and 4 and referring to the counter affidavit saying that the petitioners have not worked actually and therefore they were not entitled for regularization and that that there was no vacancy on which they could be regularized by observing that they were working since 1988-89 and the interim order was granted in their favour. The petitioners were permitted to file a detailed representation which the respondent no.1, the Vice Chairman of the Ghaziabad Development Authority was to consider in accordance with law and to pass a detailed and reasoned order thereon.

5. It appears that several writ petitions of similar nature were filed by the workers on daily wagers in Ghaziabad Development Authority, namely, Writ Petition Nos.2235 of 1997; 1886 of 1997; 6467 of 1997; 2002 of 1997 which were disposed of by this Court on 13.06.1997 directing the Vice Chairman, G.D.A. to consider the claim for regularization of the writ petitioners therein. Thereafter several contempt petitions were filed by the writ petitions of such writ petitions and the then Vice Chairman passed a detailed order on 07.08.2001. A copy of such order has been files as annexure to the writ petition. 

6. In the said detailed order, the Vice Chairman, G.D.A. considered the case of the writ petitioners who were daily wagers and who were similarly situated as the writ petitioner herein and referred to the budgetary constraints which did not permit the respondent to regularize the services and also to lack of vacancies/posts sanctioned in the G.D.A. The said order dated 07.08.2001 also referred to policy decision taken by the State Government on 24.10.1989 and 01.02.1992 which was to the effect that all those daily wagers who had worked more than 248 days in a year for three years continuously, were to be considered for regularization against sanctioned posts if they possessed eligibility qualification for the same. There were 1042 work charged employees out of which only 239 were found eligible to be regularized and all of them were regularized. Similarly in 1993, 18 work charged employees were found eligible to be regularized and they were regularized. The G.D.A. had written to the State Government for creation of posts for regularization of the remaining work charge/muster roll employees but no posts were sanctioned for the same, therefore others could not be regularized. After passing of such order, the contempt petition was dismissed.

7. It is the case of the petitioner that he has not been working since 1996 and therefore he could not come to know of the order passed in 2001 which related to other writ petitioners. When his writ petition was decided on 13.10.2006, he also filed a representation along with 13 other writ petitioners which has been rejected by the order impugned dated 02.01.2007 by referring to earlier order dated 07.08.2001 in the case of similarly situated writ petitioners by the then Vice Chairman.

8. It has been submitted by learned counsel for the petitioner that the petitioner's case was required to be considered on its own merit and could not have been decided on the basis of order passed on 07.08.2001 with regard to other writ petitioners although they were similarly situated.

It has also been argued that the order dated 02.01.2007 was not sent to the petitioner and he came to know such order only the basis of RTI application moved by him. He also got a copy of the order dated 07.08.2001 on the basis of an RTI application.

9. It has been admitted by learned counsel for the petitioner that the petitioner has not been working since 1996. He did not make any effort since 1996 on the ground the writ petition filed by him and certain others in 1993 was pending disposal and was actually disposed of on 13.10.2006. In 2006, the petitioner filed a representation which was decided on 02.01.2007. The petitioner has woken up after 15 years to file this petition praying for regularization and for back wages and benefits arising out of continuity in service. It has been submitted by learned counsel for the petitioner that one writ petition, namely, Writ Petition No.51515 of 2017 is pending before this Court with respect to the same controversy involved in the instant petition of the petitioner.

10. Hon'ble the Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others [(2006) 4 SCC 1] has observed thus:-

"52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents. "

11. In view of the observations made by the Constitution Bench, this Court finds no good ground to show interference in the order dated 02.01.2007.

12. Accordingly, the petition stands dismissed.

Order Date :- 14.12.2022

Vivek Kr.