State Of U.P. Thru. Prin. Secy. ... vs Raj Kumar Srivastava
2022 Latest Caselaw 3246 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
									A.F.R.
 

 
Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 473 of 2021
 

 
Appellant :- State Of U.P. Thru. Prin. Secy. Minor Irrigation And Ors.
 
Respondent :- Raj Kumar Srivastava
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Avinash Kant Tripathi
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

Order on the Delay Condonation Application

Having regard to the facts stated in the affidavit filed in support of the application seeking condonation of delay, the application is allowed and the delay in preferring the special appeal is hereby condoned.

Order on the Appeal

Heard Shri Jaideep Narain Mathur, learned Senior Advocate assisted by Shri V.P. Nag, learned State Counsel for the appellant-State authorities and Shri D.N. Shukla, learned counsel for the sole respondent.

Under challenge in this intra-court appeal is the judgment and order dated 21-09-2021 passed by the learned Single Judge in Writ Petition No. 604 (S/S) of 2021 whereby the writ petition has been allowed and the appellant-State authorities have been directed to regularize the services of the respondent-petitioner under the provisions of The Uttar Pradesh Regularisation of Persons working on Daily Wages or On Work Charge or On Contract in Government Departments On Group "C" And Group "D" Posts (Outside The Purview of the Uttar Pradesh Public Service Commission) Rules, 2016 (hereinafter referred to as ''2016 Rules).

Further direction issued by the learned Single Judge is that if there no vacancy is available, the appellants shall create a supernumerary post so that services of the respondent may be regularized against such post.

Shri Mathur, learned Senior Advocate has contended that the judgment and order dated 21-09-2021 passed by the learned Single Judge is apparently erroneous for the following two reasons:

(i) That Rule 6 (3) of 2016 Rules clearly mandates that for the purposes of considering regularisation of a daily wager or a work charged employee or an employee working on contract basis, the appointing authority has to constitute a Selection Committee in accordance with the relevant provisions of the service Rules and thereafter the Selection Committee is required to consider the cases of the candidates on the basis of their records and that the Selection Committee, if it considers necessary, may also interview the candidate to assess his suitability whereas the learned Single Judge while passing the judgment and order under appeal appears to have lost sight of the said Rules and has directed the appellant to regularize the services of the respondent without consideration by the Selection Committee and;

(ii) That 2016 Rules clearly exclude from its ambit the person/persons engaged/employed in a scheme or project of the State Government or Government of India sponsored programmes and since engagement of the respondent was made in a scheme known as "free-boring scheme" hence he is not covered by 2016 Rules and accordingly the direction issued by the learned Single Judge in the order under appeal is vitiated.

On the other hand learned counsel representing the respondent has opposed the prayers made in this special appeal and has submitted that the order under appeal passed by the learned Single Judge does not warrant any interference and hence the special appeal is liable to be dismissed at its threshold.

We have considered the rival submissions made by the learned counsel representing the respective parties and have also gone through the records available before us on this special appeal.

Before adverting to the submissions made by the learned counsel for the parties certain background facts which are necessary to be noticed in this case are being stated.

The respondent is said to have been engaged in a scheme of the State Government known as "free-boring scheme" on daily wages w.e.f 1st of October, 1990 without any written order. He is said to have continued in the said capacity, however, in the year 1997 the services of the respondent were dispensed with which led the respondent to file Writ Petition No. 284(S/S) of 1998. However, the said Writ Petition No. 284(S/S) of 1998 was dismissed on the ground of availability of an alternative remedy under the Labour Laws and accordingly this Court by means of the judgment and order dated 23-11-1998 refused to entertain the said writ petition by observing that the respondent has an efficacious and alternative remedy. Subsequent to dismissal of the said writ petition by this Court on 23-11-1998 the matter was referred to the Labour Court which gave its award on 09-02-2005 wherein it was provided that the respondent shall be reinstated in service however he will not be entitled to any back wages. The said award by the Labour Court dated 09-02-2025 came to be challenged by the appellant-State authorities before this Court by means of filing a Writ Petition no. 841 (S/S) of 2005. The said writ petition was dismissed by means of judgment and order dated 07-11-2006. Challenging the said order passed by this Court, the appellant-State authorities preferred Special Leave to Appeal (Civil) No. 6727 of 2008 which too was dismissed by the Apex Court by means of the judgment and order dated 10-02-2012.

Prior to dismissal of the aforesaid Special Leave to Appeal by the Apex Court, the respondent was reinstated on 22-01-2007. He thereafter, filed Writ Petition No. 19401 (S/S)/2019 claiming his regularisation which was decided by means of the judgment and order dated 18-07-2019 whereby the apellant-State authorities were directed to consider the representation moved by him seeking his regularisation. In compliance of the order dated 18-07-2019 passed by this Court in Writ Petition No. 19401 (S/S)/2019 the matter relating to regularisation of services of the respondent was considered by the appellant-State authorities which was rejected by means of the order dated 19-09-2019. It is this order dated 19-09-2019 which became the subject-matter of challenge before this Court in Writ Petition No. 604 (S/S) of 2021 which has been decided by the judgment and order dated 21-09-2021 which is under appeal herein.

If we consider the submissions made by the learned Senior Advocate representing the appellant-State authorities what we find is that the contention on behalf of the appellants regarding exclusion of the respondent from operation of the 2016 Rules is absolutely misconceived.

As observed above learned Senior Advocate has relied upon Rule 2(iii) of the 2016 Rules and submitted that since the respondent was initially appointed on daily wage basis in a scheme known as "free-boring scheme", as such 2016 Rules will have no application and hence the respondent was not entitled to be considered for regularisation of his services under the said Rules.

Rule 2 of the 2016 Rules is extracted hereinbelow:-

"2. These rules shall not apply for regularisation of:

(i) Seasonal Collection Ameen/Seasonal Peon;

(ii) Person/Persons engaged/employed/deployed for seasonal works in Horticulture Department, Agriculture Department, Agriculture Education Department and such similar Departments;

(iii) Person/Persons engaged/employed/deployed on consolidated pay/fixed honoraria in the scheme/projects of State Government or Government of India sponsored programmes;

(iv) Person/Persons engaged/employed/deployed as Home Guard Volunteer and Prantiya Rakshak Dal Volunteer;

(v) Person/Persons engaged/employed/deployed as Shiksha Mitra and Kisan Mitra;

(vi) Person/persons engaged/employed/deployed under MNREGA Scheme (Rural Development Department);

(vii) Person/Persons engaged/ employed/deployed in Aaganbadi Kendra (Women and Child Welfare Department);

(viii) Person/persons engaged/employed/deployed as Asha Bahu (Medical Health and Family Welfare Department);

(ix) Such person/persons or group of persons as notified by the State Government from time to time.

The aforesaid 2016 Rules carve out certain exclusions where the said Rules will not operate.

Sub Rule 2 (iii) of 2016 Rules provides that 2016 Rules will have no application in case a person is engaged or employed or deployed on consolidated pay/fixed honoraria in the scheme/projects of State Government or Government of India sponsored programmes. What is to be noticed in Rule 2(iii) for exclusion of 2016 Rules it is that is not only that the person seeking regularisation under the said Rules should have been employed in a scheme or project of the State or Government of India sponsored programmes but also that he should have been employed on consolidated pay/fixed honoraria.

There is no dispute, so far as the present case is concerned, that the respondent was never employed on consolidated pay/fixed honoraria in the scheme known as free-boring scheme; rather he was always employed on daily wage basis. Thus, in our considered opinion exclusion as envisaged in Rule 2 (iii) of 2016 Rules will not cover those employees, even if they have been employed in a scheme or project, who are paid their remuneration on daily wage basis. It is needles to say that there always exists a difference between remuneration paid on consolidated pay/fixed honoraria basis and remuneration paid on daily wage basis.

In the aforesaid view of the matter, we are not impressed by the argument advanced by the learned counsel for the appellant-State authorities that by operation of rule 2(iii) of 2016 Rules the respondent shall not be entitled to seek regularisation under the said Rules.

However, having observed as above, what we also notice is that sub-rule (3) of Rule 6 of 2016 Rules clearly mandates that for the purposes of consideration of regularisation of a daily wager under sub-rule (1) of Rule 6 of 2016 Rules, appointing authority shall constitute a Selection Committee in accordance with the relevant provisions of the service Rules. The occurrence of the word ''shall' in sub-rule (3) of rule 6 of 2016 Rules thus makes its mandatory that for the purposes of regularisation of any daily wager or work charged employee, the appointing authority has to constitute a Selection Committee. Sub Rule (5) of rule 6 of 2016 Rules further provides that the Selection Committee ''shall' consider the cases of the candidates on the basis of their records and if the Selection Committee considers its necessary, it may even hold the interview of the candidate seeking regularisation of his services, for the purposes of assessing their suitability. Thus, as per the scheme enunciated in rule (6) of 2016 Rules, without assessment of the suitability of a daily wager/work charge employee by a Selection Committee to be constituted by the appointing authority in terms of the relevant service rules, no regularisation can be made.

In this view of the matter, what we find is that the learned Single Judge appears to have lost sight of the provisions contained in sub-rule (3) and sub-rule (5) of Rule 6 of 2016 Rules. Even otherwise, it is the employer who needs to judge the suitability of an employee seeking regularisation of his services and the satisfaction of the employer for the purpose of regularizing the service of a daily wager/work charge cannot be substituted by the satisfaction of this Court.

It is also noticeable that though learned Single Judge while has allowed the writ petition, however, the order dated 19-09-2019 has not been set aside.

When we peruse the order dated 19-09-2019 what we find is that the only reason indicated therein is that the respondent is not covered by 2016 Rules in terms of the provisions contained in rule 2 (iii) of the 2016 Rules. As observed above, rule 2(iii) of 2016 Rules will have no application in the present case for the reason that though the respondent was employed in a scheme known as free-boring scheme, however, he was not employed on consolidated/fixed honoraria basis. The free-boring scheme as is clear from the perusal of the Government Order dated 31st of May 2016 has been in vogue in the State of U.P. since February 1983. There is no denial of the fact that the scheme is perennial in nature and as such denial of regularisation in service to an employee who is working in such a scheme which is perennial in nature, in our considered opinion, would amount to unfair labour practice. Such a practice is not expected from a modern employer like State, that too, in a welfare State. Such a practice is clearly exploitative for the reason that the scheme is not time bound; it has been continuing since 1985 and as on date there is no likelihood of the scheme being discontinued.

On the aforesaid counts, we find that the reasons indicated by the appellant-State authorities while passing the order dated 19-09-2019 are not tenable.

For the reasons given and discussion made above, this special appeal is disposed of with the following directions and orders:-

(A) The order dated 19-09-2019 passed by the Executive Engineer (Minor Irrigation), Division Raebareli as is available at page 116 of this special appeal is hereby quashed.

(B) The competent authority is directed to reconsider the matter of regularisation of the respondent in accordance with rule 6 of 2016 Rules after constituting the Selection Committee as provided in sub-rule 3 of Rule 6 of 2016 Rules within a period of two months from the date a certified copy of this order is produced before the competent authority.

(C) Since we have quashed the order dated 19-09-2019 as such the reasons given therein will not constitute a valid reason for denying the benefit of regularisation in services to the respondent and when the matter is considered afresh under this order the Selection Committee shall only judge the suitability as per the requirement of the rule 6 of 2016 Rules.

(D) Judgement and order dated 21-09-2021 passed by learned Single Judge in Writ Petition No. 604 (S/S) of 2021, shall stand modified to the extent aforesaid.

There shall be no order as to costs.

Order Date :- 18.5.2022

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