Raj Kumar vs State Of U.P. And 2 Others
2022 Latest Caselaw 2469 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 26.4.2022
 
Delivered on 11.5.2022
 
 
 
Court No. - 66
 
Case :- WRIT - A No. - 9457 of 2018
 
Petitioner :- Raj Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Siddharth Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri. Siddharth Khare, learned counsel for the petitioner and Sri Rajeshwar Tripathi, learned Standing Counsel for the State perused the records as well as the written submission.

2. Facts of the present case could be carved out from the order dated 25.10.2017 passed by this Court in Writ-A No.32803 of 1990, Raj Kumar and Anr. Vs. D.M.Mathura, which was disposed of.

3. It is the case of the petitioner that he was appointed against short terms vacancies of Class IV published in District-Mathura which was sought to be filled up by issuing advertisement. There was an interim order in favour of the petitioner dated 13.12.1990 and on the strength of the said interim order, the petitioner continued to work. The above mentioned writ petition was dismissed in default on 1.3.2016 and the petitioner was dismissed from service vide order dated 26.11.2016 on the ground that not only the writ petition was dismissed for want of prosecution, but the restoration application was also dismissed for want of prosecution. Thereafter, a second restoration application was filed by the petitioner wherein by order dated 26.4.2017, the restoration application was allowed and the writ petition was restored to its original number and in pursuance of it, the petitioner was reinstated in service. In these circumstances, the aforementioned writ petition was disposed of vice order dated 25.10.2017 with the following observations and direction:

" Counsel for the petitioners pointed out that on basis of interim order dated 13.1.1990, the petitioners continued in service and they were also given regular increments. The petitioner No. 2 has retired during the pendency of the writ petition whereas, petitioner No. 1 is on the verge of retirement. He submitted that since services of other persons, whose name figure in the same list, were regularised long back, and, therefore, the petitioners who have continued for such long duration, are also entitled for regularisation of their services. He submitted that the first petitioner, who is still in service, be granted liberty to apply for regularisation of his services, by moving an appropriate application in that regard before the authority.

Learned standing counsel appearing for the State respondents very fairly stated that in case, any application is filed by the first petitioner claiming regularisation, the same would be considered in accordance with the prevailing Rules.

Having regard to the facts of the case and the submissions made, this Court is of the opinion that interest of justice would be served in disposing the writ petition by permitting the first petitioner, who claims to be working since a long time, to apply for regularisation of his services.

Accordingly, the writ petition is disposed of as aforesaid, with liberty reserved in favour of the first petitioner. It is further provided that in case, any such application is filed, the same shall be considered and decided by the respondent within a period of four weeks, in accordance with the prevailing Rules."

4. In pursuance of above, the petitioner submitted a representation before the respondents which was rejected by impugned order dated 17.3.2018 on the ground that the appointment of the petitioner was on purely temporary basis and he could be disengaged without any prior information.

5. The petitioner continued to work in the department only due to interim order passed by this Court referred above and when the aforesaid writ petition was dismissed for non-prosecution, his services were dispensed with vide order dated 26.11.2016 with immediate effect, therefore, there was no reason to regularize the services of the petitioner.

6. Learned counsel for the petitioner submitted that the petitioner has worked since 1987 with the respondents and he was not only treated as a regular employee but regular increments were also granted to him, service book of the petitioner was also prepared and he was granted selection grade after completion of 14 years and he has relied upon pay slips annexed along with this writ petition.

7. Counsel for the petitioner also submitted that the respondents have issued fresh advertisement which shows that there were requirement of IVth Class employee and the petitioner is entitled for regularization in terms of The Uttar Pradesh Regularization of Ad-hoc Appointments (On Posts Outside The Purview of the Public Service Commission) Rules, 1979 hereinafter called the "Rules 1979" wherein cut off date was provided as 30.6.1998.

8. Aforesaid rules provide that even a temporary employee is entitled for retiral benefits who has worked for ten years and in the present case, the petitioner has worked for more than ten years.

9. Counsel for the petitioner has also placed reliance on a judgment passed by this Court in the case of State of U.P. & Ors. Vs. Kuldeep Thakur 2017 (4) ADJ 294, wherein an employee was considered for regularization even after attaining the age of superannuation.

10. Per contra, learned Standing Counsel submits that the services of the petitioner was purely on temporary basis and his services were dispensed with without any prior notice. The petitioner was continued in service only on the basis of an interim order which was vacated when the writ petition was dismissed for non-prosecution and his restoration application was dismissed for the same reason and in these circumstances, the services of the petitioner was dispensed with by a specific order dated 26.11.2016 which remained unchallenged and that order was not recalled when the writ petition of the petitioner was restored to its original number by order dated 26.4.2017 and it was not even referred or brought into the notice of co-ordinate bench when the Writ Petition No.32803 of 1990 was disposed of vide order dated 25.10.2017.

11. The aforesaid rules, 1979 are applicable only to the employees who were directly appointed on ad-hoc basis on or before 30th June, 1998 and continued in service when these rules were amended in the year 2001.

12. The petitioner was appointed only on a temporary basis. The petitioner has not filed any appointment letter along with the writ petition. Even in purported service book, copy of which is annexed along with this writ petition, status of the petitioner is shown as temporary.

13. It is not in dispute that certain benefits were granted to the petitioner when he was working on the strength of the interim order passed by this Court on 13.1.1996. However, no document was on record to show that he was directly appointed on ad-hoc basis on or before June, 30, 1998 the first requirement for the applicability of Rules, 1979 and only on the ground that petitioner has worked under an interim order from the year 1990 to 2016, would not mean that service of the petitioner was not ad-hoc rather it was akin to regular service.

14. It is also not in dispute that the services of the petitioner was dispensed with by order dated 26.11.2016 passed by District Magistrate, Mathura and till date it was neither challenged nor withdrawn. The petitioner has not challenged the said order in the present writ petition, therefore, the order dated 26.4.2017 whereby the first writ petition of the petitioner was restored to its original number cannot be considered that he was continuing in service after 26.4.2017 as this order was not brought into the notice before the co-ordinate bench.

15 The judgment passed in the case of State of U.P. & Ors. Vs. Kuldeep Thakur (supra) is distinguishable on facts that the person therein despite working for long time, his case was not considered for regularization along with similarly situated persons whereas in the present case, the petitioner was working only under the strength of interim order as referred above and his services were dispensed with by a specific order dated 26.11.2016. The petitioner has also not applied when the selection committee was constituted on 31.1.2011 and he continued to work on adhoc basis on the strength of interim order passed by this Court on 13.12.1990. This averment is specifically mentioned in paragraph 10 of the counter affidavit. However, it is vaguely replied by petitioner in the rejoinder affidavit.

16 In view of the above, the petitioner has not placed any document about the manner of his appointment, that he worked with the respondents from 13.12.1990 till 26.11.2016 when his services were dispensed with on the basis of an interim order which was vacated on 1.3.2016 while dismissing the first writ petition for want of prosecution, therefore, the only ground that his service book was prepared will not entitled him to claim that he was appointed or treated as a regular employee. He has not challenged the order dated 26.11.2016 passed by the respondents whereby the services of the petitioner were dispensed with, therefore, the petitioner has not made out any case which warrants interference by this Court under writ jurisdiction.

17. I do not find any illegality in the impugned order whereby the claim of the petitioner for regularization was rejected on the ground that the petitioner worked only on ad-ho basis and his services were dispensed with by specific order passed by the respondents on 26.11.2016, which remained unchanged.

18. The writ petition is dismissed.

Order Date: 11.5.2022

SB