State Of U.P. Thru. Prin. Secy. ... vs Chandra Shekhar
2022 Latest Caselaw 3552 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2 
 
Case :- SPECIAL APPEAL Defective No. - 301 of 2021 
 
Appellant :- State Of U.P. Thru. Prin. Secy. Forest Lko. And Ors. 
 
Respondent :- Ram Naresh Singh 
 
Counsel for Appellant :- C.S.C. 
 
Counsel for Respondent :- Ninnie Shrivastava
 
 
 
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 condoned.

Order On the Appeal

1. We have heard Sri. Amitabh Rai, the learned Additional Chief Standing Counsel representing the appellants (who were the respondents in the writ petitions decided by the learned Single Judge and who will hereinafter be referred to as ''the appellants) and Ms. Ninnie Shrivastava, Advocate, the learned counsel representing the respondents (who was the petitioner in the writ petition before the Hon'ble Single Judge and who will hereinafter be referred to as ''the petitioner').

2. Briefly stated, the facts of the case are that on 10-10-1990, the State Government had passed an order referring the following two issues for being decided by the Industrial Tribunal Uttar Pradesh: -

(a) As to whether non-regularization of services of 18 workmen (which included the petitioner) and non-payment of regular pay scale of Rs.305-390 to him, was improper and illegal and;

(b) If it is so, to what relief/compensation the workmen were entitled to.

3. In the details of 18 employees annexed with the reference, the dates of appointment of the employees were mentioned, which were between 12-06-1981 and March 1987 and the petitioner's date of appointment was mentioned as 05-06-1983. The aforesaid industrial dispute referred by the State Government was registered as Case No. 308 of 1990. The Appellants had defended the reference and had contended that the services of the employees could not be regularized for the reason that sanctioned posts were not available. It was not contended by the Appellants that the employees had not been appointed on the dates mentioned against their names or that they were not working in the department.

4. The aforesaid industrial dispute referred by the State Government was decided by the Presiding Officer of the Industrial Tribunal vide judgment dated 30-05-1992, holding that as sanctioned posts were not available, the employees were not entitled to be regularized in service However, they were entitled to receive regular pay scale as was admissible to the regularly appointed employees. Accordingly, the Industrial Tribunal declared an award on 22-08-1992.

5. The aforesaid award dated 22-08-1992 declared by the Industrial Tribunal was challenged by the appellants by filing Writ Petition No. 347 (S/S) of 1993 before this Court, which was decided by means of the judgment dated 24-04-2007, whereby the order dated 30-05-1992 passed by the Industrial Tribunal, to the extent it directed payment of regular pay scale to the petitioners, was quashed. However, the Court directed that the employees shall be paid wages/salary in the minimum of the pay scale admissible to regularly appointed class-IV employees. The appellants were further directed to consider the case of the 18 employees, which included the petitioner, for regularization of their services in accordance with the provisions contained in the Uttar Pradesh Regularization of Daily Wages Appointments on Group ''D' Posts Rules, 2001 (which shall hereinafter be referred to as ''the Rules of 2001'), expeditiously keeping in view the tenure of almost about 25 years spent by the employees in service as daily wagers.

6. The appellants challenged the aforesaid order dated 24-04-2007 passed in Writ Petition No. 347 (S/S) of 1993 by filing S.L.P. (Civil) No. 8022 of 2008 which was dismissed by Hon'ble Supreme Court vide order dated 07-07-2008 and thus the order dated 24-04-2007 passed by this Court attained finality.

7. After dismissal of the aforesaid Special Leave Petition by Hon'ble Supreme Court, the appellants complied with the judgment and order dated 24-04-2007 partly and the petitioner and 17 other similarly situated employees were paid their wages/salary in the minimum of the pay scale admissible to the regularly appointed employees. However, their claim for regularization was not considered despite the fact that in the order dated 24-04-2007 this Court had directed the Appellants to consider regularization of the petitioners' services expeditiously.

8. In the meantime, a list was prepared by the appellants in which the petitioner and 17 other similarly situated employees were shown as ineligible for regularization. However, the said list did not contain any reason for terming them as ineligible for being regularized.

9. Although in the judgment dated 24-04-2007 passed in Writ Petition No. 347 (S/S) of 1993, this Court had recorded categorical finding that "however, it has been admitted that since the private opposite parties and other workmen were appointed prior to 29-06-1991 they shall be entitled to be considered for regularization in accordance with the Rules, 2001" and the Court had issued a direction to the Appellants to consider the case of the petitioner and other similarly situated employees for regularization in accordance with the Rules of 2001', the petitioner was termed as ineligible for regularization and his claim for regularization of his service was not considered in a patent disregard of the aforesaid direction issued by this Court.

10. On 08-09-2010, the State Government issued a Government Order laying down a policy for regularizing those work charged and daily wage employees working in the Government Departments, Urban / Local Bodies, Development Authorities and other Public Sector Undertakings / Corporation, who had been appointed upto 29-06-1991. The State Government issued a direction that the work charged and daily wage employees shall be regularized in service with immediate effect, by creating supernumerary posts, if it was so required.

11. Despite the direction issued by this Court by means of the judgment and order dated 24-04-2007 and despite the policy decision of the State Government issued on 08-09-2010, the case of the petitioner for regularization in service was not considered and the petitioner was compelled to approach this Court by instituting Writ Petition No. 7366 (S/S) of 2013. On 06-12-2013, the following interim order was passed in the aforesaid Writ Petition: -

After hearing learned counsel for parties, in the interest of justice, as an interim measure, it is provided that petitioners are permitted to move fresh representation to opposite party no. 4/Divisional Director/Divisional Forest Officer Social Forestry, Forest Division, Sitapur within two weeks from today in respect to their grievances which they have raised in the present writ petition annexing all relevant documents and materials in support of their case and after receiving the same, opposite party no. 4 shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of four weeks thereafter.

12. In compliance of the aforesaid order dated 06-12-2013 passed in Writ Petition No. 7366 (S/S) of 2013, the petitioner and the 17 other similarly situated employees moved a joint representation claiming regularization of their services. The Regional Director, Social Forestry Division, Sitapur rejected the representation by means of an order dated 01-02-2014, holding that the petitioner could not produce any document / evidence to prove that he has worked since 29-06-1991 - the cut-off date mentioned in the Rules of 2001, till 21-12-2001 - the the date of promulgation of the Rules and, therefore, he does not fulfill the eligibility condition prescribed in Rule 4 (1) of the Rules of 2001 and his services cannot be regularized.

13. The petitioner instituted Writ Petition No. 4128 (S/S) of 2014 challenging the aforesaid order dated 01-02-2014 any praying for issuance of a Writ of Mandamus commanding the respondents to regularize his services on Group D post of Mali in view of the Government Order dated 08-09-2010, from the date the services of 45 other employees, including some employees junior to the petitioner, were regularized.

14. The aforesaid Writ Petition filed by the petitioner has been allowed by an Hon'ble Single Judge means of a judgment and orders dated 02-02-2021, whereby the order dated 01-02-2014 rejecting the petitioner's representation claiming regularization of his services has been set aside and the Appellants have been directed to immediately regularize the petitioner's service from the date the persons junior to him have been regularized. The appellants were further directed to pass appropriate orders in respect of regularization of services of the petitioner within a period of one month from the date of production of certified copy of the said order.

15. The instant Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been filed by the State assailing the aforesaid judgment and order dated 02-02-2021 passed by the Hon'ble Single Judge in Writ Petition No. 4125 (S/S) of 2014.

16. Sri. Amitabh Rai, the learned Additional Chief Standing Counsel, has submitted that the finding recorded by the Hon'ble Single Judge that the State did not dispute that the petitioners were appointed in the year 1985 and that they have been working continuously since then, is not correct and the judgment based on the aforesaid finding is erroneous and is liable to be set aside.

17. On 27-08-2021, this Court had passed an order in this Special Appeal requiring the appellants to submit an affidavit disclosing the complete period of working of the petitioners. In compliance of the aforesaid order dated 27-08-2021 a supplementary affidavit sworn in by Sri. Arun Kumar Misra, Assistant Conservator of Forest, Sitapur has been filed on behalf of the Appellants, annexing therewith a chart which discloses that the petitioner Ram Naresh Singh did not perform any work/ duty from December, 1979 till December, 2010 and in compliance of the order dated 24-04-2007 passed by this Court, he has been paid minimum of the pay scale admissible to regularly appointed group ''D' employees with effect from 20-02-2021 till date.

18. The learned State Counsel has submitted that the order dated 01-02-2004 passed by the Regional Director, Social Forestry Division, Sitapur did not suffer from any illegality or irregularity and as such the learned Single Judge has completely erred in law in quashing the same and directing the Appellants to regularize the services of the petitioners.

19. Per contra, Ms. Ninnie Shrivastava, Advocate, the learned counsel representing the respondent has submitted that in its judgment and order dated 24-04-2007 passed in Writ Petition No. 347 (S/S) of 1993, this Court had recorded a categorical finding that the petitioner was appointed prior to 1991 and the special leave petition filed by the State-appellants against the said judgment and order dated 24-04-2007 was dismissed by the Hon'ble Apex Court by means of the order dated 07-07-2008 and thus the aforesaid order dated 24-04-2007 passed in Writ Petition No. 347 (S/S) of 1993 attained finality. Therefore, it was not open to the appellants to take a stand which runs contrary to the aforesaid finding recorded by this Court. It has also been asserted by the learned counsel representing the petitioner that the claim of the petitioners was not considered in the light of the finding recorded this Court in its judgment and order dated 24-04-2007 that the petitioners were appointed prior to 29-06-1991 and as such they were entitled to be considered for regularization in accordance with the Rules of 2001, and the direction issued in the aforesaid order that the case of the petitioner for regularization be considered in accordance with the Rules of 2001.

20. The learned Counsel for the petitioner has submitted that in view of the aforesaid direction based on the said finding, the reason given by the Regional Director, Social Forestry Division, Sitapur for rejecting the claim of the petitioners for regularizing their services is not tenable in the eyes of law and the Hon'ble Single Judge has rightly quashed the said order dated 01-02-2014 and has rightly directed the appellants to regularize the services of the petitioners.

21. Having considered the rival submissions made by the learned counsel appearing for the respective parties and perused the record, we find that the Regional Director, Social Forestry Division, Sitapur has quoted Rule 4 (1) of the Rules of 2001 in his this Court in order dated 01-02-2014 and has thereafter proceeded to give a finding that the petitioner could not produce any document / evidence to prove that he has worked since 29-06-1991 till 21-12-2001 and, therefore, he does not fulfill the eligibility condition prescribed in Rule 4 (1) of the Rules of 2001 and his services cannot be regularized. This is the only reason mentioned by the Regional Director, Social Forestry Division, Sitapur to deny the claim of the petitioners for regularization of his services.

22. In the details of employees annexed with the reference made by the State Government to the Industrial Tribunal by means of the Government Order dated 10-10-1990, the dates of appointment of the employees were mentioned, which were between 12-06-1981 and March 1987 and the petitioner's date of appointment was mentioned as 05-06-1983. Case No. 308 of 1990 instituted on the basis of the aforesaid reference, was defended by the Appellants, who had contended that the employees could not be regularized for the reason that sanctioned posts were not available. It was not contended by the Appellants that the employees had not been appointed on the dates mentioned against their names or that they were not working in the department.

23. The aforesaid industrial dispute referred by the State Government was decided by the Presiding Officer of the Industrial Tribunal vide judgment dated 30-05-1992 holding that the employees were not entitled to be regularized in service for the reason that sanctioned posts were not available. However, they were entitled to receive regular pay scale as was admissible to the regularly appointed employees. Accordingly, the Industrial Tribunal had declared an award on 22-08-1992.

24. The aforesaid award dated 22-08-1992 declared by the Industrial Tribunal was challenged by the appellants by filing Writ Petition No. 347 (S/S) of 1993 and it was contended on behalf of the Appellants that the employees were not entitled to get their services regularized for the reason that they had not qualified against the regular vacancies alongwith other candidates. The Appellants did not contend that the employees had not been appointed on the dates ranging between 12-06-1981 and March 1987 mentioned against their names or that they were not working in the Department.

25. Writ Petition No. 347 (S/S) of 1993 was decided by means of the judgment dated 24-04-2007, holding that the employees had put in more than 25 years of service and instead of regular pay scale, they should be paid the minimum pay scale admissible to the Class IV employees. Accordingly, this Court had quashed the Industrial Tribunal's order dated 30-05-1992, to the extent it directed payment of regular pay scale to the petitioner. However, this Court directed that the employees shall be paid wages/salary in the minimum of the pay scale admissible to regularly appointed Class-IV employees. The appellants were further directed to consider the case of the 18 employees, which included the petitioner, for regularization of their services in accordance with the provisions contained in the Rules of 2001, expeditiously keeping in view the tenure of almost about 25 years spent by the employees in service as daily wagers.

26. The appellants challenged the aforesaid order dated 24-04-2007 passed in Writ Petition No. 347 (S/S) of 1993 by filing S.L.P. (Civil) No. 8022 of 2008 which was dismissed by Hon'ble Supreme Court vide order dated 07-07-2008 and thus the order dated 24-04-2007 passed by this Court attained finality.

27. Once this Court recorded a finding that the employees had put in more than 25 years of service and issued a direction for consideration the case of the employees for regularization in accordance with the Rules of 2001 expeditiously, keeping in view their tenure of almost 25 years as daily wagers and the judgment passed by this Court attained finality upon dismissal of the Special Leave Petition filed against the judgment dated 24-04-2007, in our considered opinion, the Appellants have no authority to contend that the petitioner was not working prior to 29-06-1991 as this stand clearly runs contrary to the finding recorded by this Court in its judgment and order dated 24-04-2007 passed in Writ Petition No. 347 (S/S) of 1993, which judgment has attained finality upon dismissal of the S.L.P. filed against it.

28. It is not a case where the appellants did not avail the opportunity to contest the industrial dispute or the proceedings of Writ Petition No. 347 (S/S) of 1993. A list of employees alongwith their respective dates of appointment ranging between 12-06-1981 and March 1987 was there before the Industrial Tribunal Based and the Appellants did not dispute the dates of appointment of the employees and they did not contend that the employees were not working in the department. The only contention put forth by the Appellants was that the employees were not working against sanctioned posts.

29. Even while contesting Writ Petition No. 347 (S/S) of 1993, the only contention put forth by the Appellants was that the employees were not entitled to get their services regularized for the reason that they had not qualified against the regular vacancies alongwith the other candidates. The Appellants did not contend that the employees had not been appointed on the dates ranging between 12-06-1981 and March 1987 mentioned against their names or that they were not working in the Department. When after considering the contention of the Appellants, this Court decided the Writ Petition holding that the employees had been working on daily wages for almost 25 years and that they were entitled to be considered for regularization in accordance with the Rules, the Appellants cannot be allowed to contend that the petitioner could not produce any document / evidence to prove that he has worked since 29-06-1991 - the cut-off date mentioned in the Rules of 2001, till 21-12-2001 - the date of promulgation of the Rules, and, therefore, he does not fulfill the eligibility condition prescribed in Rule 4 (1) of the Rules of 2001 and his services cannot be regularized. The aforesaid reason mentioned in the order dated 01-02-2014 for rejecting the petitioner's claim for regularization of his service is patently illegal and unsustainable.

30. The Hon'ble Single Judge while deciding the writ petition filed by the petitioners by means of the judgment and order under appeal has thus rightly relied upon the judgment and order dated 24-04-2007 passed by this Court in Writ Petition No. 347 (S/S) of 1993, which has attained finality.

31. For the reasons aforesaid, we are of the considered opinion that judgment and order dated 02-02-2021 passed by the Hon'ble Single Judge does not suffer from any illegality or irregularity so as to call for any interference in this special appeal.

32. Accordingly, the Special Appeal is hereby dismissed.

33. However, there will be no order as to costs.

(Subhash Vidyarthi , J.) (Devendra Kumar Upadhyaya, J.)

Order Date :- 20/05/2022

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