Jhothu And Ors. vs State Of Up Thru.Prin. Secy. ...
2022 Latest Caselaw 15619 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17
 

 
Case :- WRIT - A No. - 16717 of 2018
 

 
Petitioner :- Jhothu And Ors.
 
Respondent :- State Of Up Thru.Prin. Secy. Forest And Ors.
 
Counsel for Petitioner :- Dhirendra Kumar Mishra,Anurag Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Lavania,J.

Heard.

By means of present petition the petitioner as sought following main reliefs:-

(I) A writ, order or direction in the nature of Certiorari thereby quashing the order dated 17.03.2018, passed by the Opposite Party No.3, contained as Annexure No.1 to this writ petition.

(II) A writ, order or direction in the nature of Mandamus thereby directing the opposite parties to regularize the services of the petitioners on a Group-D Post under the Uttar Pradesh Group "C" and "D" Daily Wager Employee Working as Daily Wager/Contract/Work Charge in the Government Department Regularization Rules, 2016.

Brief factual matrix of the present case is to the effect that the petitioners for the purposes of regularization of services approached this Court by means of Writ Petition No. 29663 (S/S) of 2017 (Jhothu And 2 Ors. vs. State Of U.P. Thru Prin.Secy.Forest Civil Sectt.Lko. & Ors.), which was disposed of vide order dated 08.12.2017 whereby the opposite parties were directed to consider the case of the petitioner for regularization. The operative portion of the order dated 08.12.2017 on reproduction reads as under:-

"In view of aforesaid, the petitioners are permitted to move a fresh representation to the opposite party No.3 within a period of two weeks from today, annexing therewith a copy of the present writ petition and all other documents in support of their case along with a certified copy of this order. In case such a representation is moved, the opposite party No.3 shall decide the same by a reasoned and speaking order within a period of three months from the date a certified copy of this order is placed before him.

The writ petition is disposed of."

In compliance of the order of this Court dated 08.12.2017, the Divisional Forest Officer, Sohelwa Vanya Jeev Prabhag, Balrampur-opposite party No.3 considering the case of the petitioners for regularization under U.P. Daily Wager and Contractual Appointment Regularization Rules, 2016 (in short "Rules of 2016") and rejected the claim of the petitioners for regularization vide order dated 17.03.2018, which is under challenge in the petition.

It appears from the order impugned that the opposite party No.3 for the purposes of considering the regularization of the petitioners taken note of the period of engagement of petitioners with the Department in following manner:-

dz0

la0

Jfed dk uke

o"kZ

2001&02

o"kZ

2002&03

o"kZ

2003&04

o"kZ

2004&05

o"kZ

2005&06

o"kZ

2006&07

o"kZ

2007&08

o"kZ

2008&09

o"kZ

2009&10

Jh >ksFkw

[email protected] ls [email protected] = ¼12 ekg½

&&

[email protected] = ¼1 ekg½

[email protected] ls [email protected] rd = ¼3 ekg½

&&

[email protected]@ ls [email protected] rd = ¼5 ekg½

[email protected] ls [email protected] rd ,oa [email protected] ls [email protected] rd = ¼10 ekg½

&&

&&

Jh gdhe

[email protected] [email protected] rd ,oa [email protected] ls [email protected] rd = ¼10 ekg½

[email protected] ls [email protected] rd = ¼4 ekg½

[email protected]] [email protected]] [email protected] ,oa [email protected] = ¼4 ekg½

[email protected] ls [email protected] = ¼12 ekg½

[email protected] ls [email protected] rd ,oa [email protected] ls [email protected] rd = ¼11 ekg½

[email protected] ls [email protected] rd ,oa [email protected] ls [email protected] rd = ¼10 ekg½

&&

[email protected] ls [email protected] rd = ¼12 ekg½

[email protected] ls [email protected] rd = ¼12 ekg½

Jh uUnjke

[email protected] ls [email protected] rd = ¼06 ekg½

&&

&&

&&

&&

[email protected] rd [email protected] rd = ¼12 ekg½

&&

[email protected] ls [email protected] rd = ¼12 ekg½

[email protected] ls [email protected] rd = ¼12 ekg½

o"kZ

2010&11

o"kZ

2011&12

o"kZ

2012&13

o"kZ

2013&14

o"kZ

2014&15

o"kZ

2015&16

o"kZ

2016&17

o"kZ

2017&18

vH;qfDr

Jh >ksFkw

&&

[email protected] ls [email protected] rd = ¼8 ekg½

[email protected] ls [email protected] rd ,oa [email protected] ls [email protected] rd = ¼11 ekg½

[email protected] ls [email protected] rd = ¼4 ekg½

[email protected] ls [email protected] rd = ¼9 ekg½

[email protected] ls [email protected] rd ,oa [email protected] ls [email protected] rd = ¼11 ekg½

[email protected] ls [email protected] rd ,oa [email protected]] [email protected] - ¼5 ekg½

[email protected] ls [email protected] rd = ¼4 ekg½

Jh >ksFkw }kjk o"kZ 2002&03] 2005&06] 2008&09] 2009&10] 2010&11 esa dk;Z ugha fd;k x;k gSA

Jh gdhe

[email protected] ls [email protected] rd = ¼12 ekg½

&&

[email protected] ls [email protected] rd = ¼12 ekg½

[email protected] ls [email protected] rd = ¼10 ekg½

[email protected] ls [email protected] rd = ¼12 ekg½ eujsxk

;kstuk esa

[email protected] ls [email protected] rd = ¼3 ekg½

[email protected] ls [email protected] rd ,oa [email protected] ls [email protected] rd = ¼9 ekg½

&&

Jh gdhe }kjk o"kZ 2007&08 ,oa 2011&12 esa dk;Z ugha fd;k x;k gS ,oa o"kZ 2002&03 o 2003&04 esa ek= 4&4 ekg gh dk;Z fd;k x;k gSA o"kZ 2014&15 esa eujsxk ;kstuk esa dk;Z fd;k x;k gS] fofu;ferhdj.k fu;ekoyh 2016 ds fu;e 2 ¼6½ ds izkfo/kkuksa ds varxZr dk;Z djus dh fujUrjrk esa bldk ykHk ugha fn;k tk ldrk gSA

Jh uUnjke

[email protected] ls [email protected] rd = ¼12 ekg½

&&

[email protected] ls [email protected] rd = ¼12 ekg½

[email protected] ls [email protected] rd = ¼10 ekg½

[email protected] ls [email protected] rd = ¼5 ekg½

[email protected] ls [email protected] rd ,oa [email protected] ls [email protected] rd = ¼11 ekg½

[email protected] ls [email protected] rd] [email protected] ls [email protected] rd ,oa [email protected]] [email protected] = ¼9 ekg½

[email protected] ls [email protected] rd = ¼4 ekg½

Jh uUnjke }kjk o"kZ 2002&03] 2003&04] 2004&05] 2005&06] 2007&08 ,oa 2011&12 esa dk;Z ugha fd;k x;k gSA

A perusal of the aforesaid shows that the petitioners were engaged by the Department prior to the cut off date indicated in the Rules of 2016 i.e. 31.12.2001 and the petitioners were engaged on the date of enforcement of Rules of 2016 i.e. 12.09.2016.

It further transpires from the order impugned that the opposite party No.3 rejected the claim of the petitioners for regularization under the Rules of 2016 on the ground that since December, 2001 to September 2016 they were not continuously worked with the Department. The reasoning given by the opposite party No.3 in rejecting the claim of petitioners on regularization on reproduction reads as under:-

"m0iz0 'kklu ou ,oa oU; tho vuqHkkx&3] y[kuÅ ds i=kad [email protected]&3&17&700 ¼44½@2017 fnukad 01-05-2017 ls vf/kla[; inksa dks Lohd`r djus ds laca/k esa mijksDr fofu;ferhdj.k fu;ekoyh 2016 esa of.kZr vof/k ¼fnlEcj&2001 ls flrEcj&2016 rd½ yxkrkj dk;Z djus dh vis{kk dh x;h gSA

mijksDr nSfud Jfed fofu;ferhdj.k fu;ekoyh] 2016 esa okafNr vof/k fnlEcj&2001 ls flrEcj&2016 esa e/; Jh >ksFkw }kjk 110 ekg ¼9 o"kZ 2 ekg½] Jh gdhe }kjk 69 ekg ¼5 o"kZ 9 ekg½ rFkk Jh uUnjke }kjk 101 ekg ¼8 o"kZ 5 ekg½ dk;Z ugha fd;s tkus ds dkj.k] fujUrjrk izekf.kr ugha gksrh gS] ftlds dkj.k Jh >ksFkw] Jh gdhe ,oa Jh uUnjke ^^mRrj izns'k ¼mRrj izns'k yksd lsok vk;ksx ds {ks= ds ckgj½ lewg ^x* vkSj lewg ^?k* ds inksa ij ljdkjh foHkkx esa nSfud etnwjh ;k dk;Z&izHkkj ;k lafonk ij dk;Z dj jgs O;fDr;ksa dh fofu;ferhdj.k fu;ekoyh] 2016 ds varxZr fofu;ferhdj.k gsrq ik= ugha gSA

vr% Jh >ksFkw] Jh gdhe rFkk Jh uUnjke dk lewfgd izR;kosnu fnukad 18-12-2017 dk mijksDrkuqlkj fuLrkj.k fd;k tkrk gSA"

Assailing the order impugned dated 17.03.2018 as also the reliefs sought in the present case, learned counsel for the petitioners stated that the reasoning given in the impugned order by the opposite party No.3 while rejecting the claim of the petitioners is completely arbitrary and unjustified as the petitioners were engaged prior to December, 2001 and were also working in the Department on Daily Wager for discharging the duties related to Class-IV post on the date of enforcement of Rules of 2016 i.e. 12.09.2016.

He further submitted that even on the basis of working period indicated in the order impugned, the petitioners are entitled for regularization. The Regularization Rules of 2016 says that a person who was engaged prior to 31 December, 2001 and was working on the date of enforcement of Rules i.e. 12.09.2016 would be entitled to regularization. In this regard, reliance has been placed on Rule 6(1) of Regularization Rules of 2016, which on reproduction reads as under:-

"6. (1) Any person who-

(i) was directly engaged or employed or deployed or working on daily wages or on work charge or on contract in a Government Department on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) on or before December 31, 2001 and is still engaged or employed or deployed or working as such on the date of the commencement of these rules; and

(ii) possessed requisite qualifications prescribed for regular appointment for that post at the time of such engagement or employment or deployment on daily wages or on work charge or on contract, under the relevant service rules and, subject to the provisions of above mentioned rules 2 and 5, shall be considered for regular appointment on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) in permanent or temporary vacancy as may be available on the date of the commencement of these rules, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders."

In support of his submission learned counsel for the petitioners placed reliance on the judgment of this Court dated 25.01.2017 passed in Writ Petition No. 8322 (S/S) of 2010 (Shiv Kumar vs. State of U.P. And Others) and the judgment dated 14.12.2007 passed in Civil Misc. Writ Petition No. 38170 of 2005 (Janardan Yadav vs. State of U.P.).

Learned counsel for the petitioners also placed reliance on the judgment dated 13.04.2011 passed in Special Appeal No. 241 of 2011 (State of U.P. and Others vs. Deshraj). Prayer is to allow the present petition for the reliefs sought.

Opposing the prayer of petitioners for regularization, Sri Ranvijay Singh, learned counsel for the State submitted that the petitioners were not in continuous service of the Department. There is break in service. The break in service is so huge and on account of the same under the Rules of 2016 the petitioners cannot be regularized. As such, the opposite party No.3 rightly refused the claim of the petitioners for regularization by the impugned order.

Elaborating this aspects of the case, he stated that the petitioner No.1 was not in service with the Department in the year 2002-03, 2005-06, 2008-09, 2009-10 and 2010-11. The petitioner No.2 was not in service with the Department in the year 2002-03, 2003-04, 2004-05, 2005-06, 2007-08 and 2011-12. The petitioner No.3 was not in service with the Department in the year 2007-08 and 2011-2012. The petitioner No.3 has worked with the Department only four months in the year 2002-03 and 2003-04. The period indicated above is very huge, as such, petitioners are not entitled for regularization under the Rules, 2016.

In response, learned counsel for the petitioners stated that the Rules of 2016 were framed with a view and object to regularize the service of a person who was engaged by the State Government as Daily Wager prior to 31.12.2001 and who were discharging the duties assigned to them by the State Government at the time of enforcement of Rules of 2016. He stated that the Rules does not say that a person who was engaged by the State Government should be in continuous engagement with the Government. As such, the argument of the learned counsel for the State has no force.

Considered the submission of the learned counsel for the parties and perused the record.

Considering the aforesaid facts of the case particularly the fact that the Rules of 2016 does not say that a person engaged by the State Government should be in continuous service with the Government as also the judgments relied upon by the learned counsel for the petitioners, this Court is of the view that present petition is liable to be allowed and accordingly, it is allowed. The impugned order dated 17.03.2018, annexed as Annexure No. 1 to the writ petition, is quashed. The respondents are directed to re-consider the case of the petitioners for regularization under the Rules of 2016 in the light of the observations made hereinabove, afresh and pass appropriate order within three months from the date of production of certified copy of this order.

Order Date :- 2.11.2022

Vinay/-