Phool Chandra Shukla vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 16445 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- WRIT - A No. - 5894 of 2022
 

 
Petitioner :- Phool Chandra Shukla
 
Respondent :- State Of U.P. Thru. Prin. Secy. Forest Dept. And 3 Others
 
Counsel for Petitioner :- Krishna Madhav Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Krishna Madhav Shukla, learned counsel for petitioner as well as learned Standing Counsel for the respondents.

2. It has been submitted by learned counsel for petitioner that petitioner was engaged as Seasonal Export Moharrir in the Office of Conservator of Forest,Devi Patan Mandal, Gonda in 1987 on daily wages basis.

3. It is submitted that after working for number of years, the similarly situated persons approached this Court by filling a Writ Petition No. 7913 (SS) of 1990 where by means of judgment dated 31.03.2002, this Court had directed the respondents to consider the case daily wages employees for regularisation as well as for payment of regular pay-scale. In compliance of the order of this Court, all the daily wages employees were granted given minimum of the pay scale. The petitioner also preferred a writ petition being Writ Petition No. 7942 (SS) of 2005 and was granted the benefit of the judgment dated 31.03.2002 and was accordingly granted a pay scale of Rs. 950-1500/-.

4. It is further submitted that in the meanwhile the U.P. Regularization of Daily Wages Appointment of Group C Post (Outside the purview of Uttar Pradesh Public Service Commission) Rules, 1998 were promulgated providing that services of daily wages employees would be regularised subject to the fact that they had been in continuous service prior to 29.06.1991. Though, the petitioner was fully covered under the said rules but his case was not considered while on the other hand some juniors of the petitioner including Shri Uma Shankar Mishra and Shri Ram Jiyawan Singh and others were regularised in the year 2005. One Kashi Ram who was also similarly circumstances as that of the petitioner and whose services also not regularised, approached before this Court by filing Writ Petition No. 18279 (SS) of 2017 (Kashiram Vs. State of U.P.) and by means of judgment dated 07.08.2019 this Court considering the entire conspectus of facts directing the respondents to regularise his services.

5. It is stated that though the petitioner had worked 28 years in the department but his services have not been regularised in most illegal and arbitrary manner. In this regard the petitioner had approached this Court seeking a direction to the respondents for being regularised by filing a Writ Petition No. 1795 (SS) of 2018 which was disposed of by this Court by means of judgment dated 25.02.2022 directing the respondents to consider the case of the petitioner.

6. It is in compliance of the judgment of this Court dated 25.02.2022 that the impugned order dated 18.08.2022 has been passed rejecting the claim of the petitioner for regularisation. Only ground stated in the said order is that prior to consideration of the similarly situated persons the petitioner superannuated and also that he was not holding a substantial post either on permanent or temporary basis and consequently was not eligible for being regularised.

7. It is noticed that all these aspects which form basis of rejection of the claim of the petitioner was duly considered by this Court in the case of Kashiram(Supra) and this Court had returned the finding in favour of the petitioner. For the sake of convenience, the order passed in the case of Kashiram (Supra) is as under::-

"Heard Shri K.M. Shukla, learned counsel for the petitioner and Shri Pradeep Kumar, learned standing counsel for the respondents-State and perused the record.

The petitioner has approached this Court by means of the instant petition seeking a relief in the nature of certiorari for quashing of the impugned order dated 05.05.2017, by which the case of the petitioner for regularization was rejected by the opposite party No.3.

The petitioner was appointed as a Seasonal Moharrir in the office of the opposite parties in the year 1973 on daily wages basis. Later, by an order dated 16.10.2001, the post of Seasonal Moharrir was merged with the post of Forester (Van Daroga) and to that effect the service rules 2001 i.e. Subordinate Forest Rangers, Deputy Rangers and Foresters Services (IVth Amendment) Rules, 2001 were accordingly amended. Certain other daily wagers of the department had also preferred a Writ Petition No.7913 (SS) of 1990 and this Court by means of the order dated 21.03.2002 directed the opposite parties to consider the case of such daily wagers for grant of minimum pay-scale.

In the present case, the case of the petitioner was also considered for providing the minimum pay-scale in light of the judgment dated 28.07.2004. Since, the U.P. Regularization of Daily Wages Appointment on Group 'C' Post (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 were in force (hereinafter referred to as "the Rules of 1998"), which covered the case of the petitioner for his regularization. However, since it was not considered, therefore, the petitioner preferred Writ Petition No.6869 (SS) of 2007. This Court by means of the order dated 23.01.2017 disposed of the writ petition directing the authorities concerned to consider the case of the petitioner for regularization and also communicate the order to the petitioner. The relevant portion of the order is being reproduced hereinafter for ready reference:-

"Appreciating the fact that there are statutory rules for consideration of the regularization i.e. 1998 Rules and it is not in dispute that petitioners were continuing on the post on which they have been engaged in the year 1973, the writ petition disposed of finally with a direction to the Chief Conservator of Forest, State of U.P., Lucknow to examine the claim of the petitioners for regularization from the date of eligibility in pursuance of 1998 Rules as amended from time to time as well as other Government Orders, which are applicable on the issue, and pass appropriate order, in accordance with law, expeditiously, say, within a period of three months from the date of receipt of a certified copy of this order. If the services of petitioners are being regularized, they shall also be given consequential benefits as permissible under law. The decision so taken shall be communicated to the petitioners."

The authorities in pursuance of the aforesaid order passed by this Court, constituted a committee and considered the case of the petitioner and by means of the impugned order dated 05.05.2017 rejected the case of the petitioner primarily on the ground that the petitioner had already superannuated and, therefore, his case could not be considered. It is this order, which is under challenge in the instant writ petition.

The submission of the learned counsel for the petitioner is that the ground taken in the impugned order is absolutely unsustainable inasmuch as in terms of Rule 4 of the regularization rules, a copy of which has been annexed as Annexure No.3 with the petition, clearly provides that any person, who was directly appointed on a daily wages basis on Group "C" post in the Government before June 29, 1991 and is continuing in service as such on the date of commencement of these rules shall be entitled to consider. The Rule 4(1)(i) is being quoted for convenient perusal:-

"4. Regularization of daily wages appointment on Group 'C' posts.-(1) Any person who-

(i) was directly appointed on daily wage basis on Group 'C' posts in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and"

It has been submitted that these Rules only postulates that the person, who is appointed before the cut of date i.e. June 29, 1991 and is continuing in service on the date of the commencement of the Rules shall be entitled to be considered for regularization.

It has further been submitted that it is not disputed by the respondents that the petitioner was appointed as a daily wager and before the cut of date and was in continuing service at the time when the Rules were promulgated, therefore, the reasons taken in the impugned order is not sustainable. Accordingly, it has been submitted that the petitioner is entitled to be considered for regularization.

Per contra, learned standing counsel for the State while filing counter affidavit has taken twofold defence. It has been stated that since the petitioner has been superannuated, accordingly, he was not entitled to the benefit of the Rules and the second ground is that the petitioner was simply a high school and had not passed intermediate examination, which was a prescribed qualification for the post of Forester (Van Daroga). Accordingly, he was not found eligible.

Learned counsel for the petitioner while rebutting the aforesaid arguments has drawn attention of the Court to the rejoinder affidavit along with the qualification for the post of Forester (Van Daroga),which was amended by the Subordinate Forest Rangers, Deputy Rangers and Foresters Services (IVth Amendment) Rules, 2001 prescribes that 50% of the direct appointment of the candidates, who holds high school examination certificate was eligible.

Thus it is not disputed that the Regularization Rules came in the year 1988 and the petitioner has been working since 1973 and he had already preferred his Writ Petition No.6869 (SS) of 2007 which was disposed of with the direction as mentioned hereinabove first.

Since, as per the Rule, the petitioner was liable to be considered which was not done and during pendency of the earlier petition the petitioner superannuated in 2014, thus, this fact shall not be relevant as the right of the petitioner had been crystallized and even the ground of not possessing the qualification is not found sustainable in light of the Rules of 2001, hence, the submissions of the learned standing counsel for the respondents-State does not find favour with this Court.

Thus, in view of the above, it is clear that two grounds taken by the respondents-State are completely untenable and the impugned order has been passed ignoring the conditions and prescriptions as contained in the Rules.

This Court is of the considered view that the impugned order dated 05.05.2017 deserves to be quashed. Accordingly, the writ petition is allowed. The impugned order dated 05.05.2017 is quashed. The opposite parties are directed to re-consider the case of the petitioner in light of the observations made in this order with all consequential benefits from the date of his eligibility.

In the result, the writ petition is allowed.

No order as to costs."

8. Learned counsel for petitioner submits that petitioner is also entitled to the similar relief as granted to Kashiram.

9. Learned Standing counsel has opposed the writ petition but could not dispute the facts in the case of the petitioner as narrated in the impugned order are similar to the grounds on which Kashiram's case was also rejected by the respondents and all the grounds raised have been answered against the respondents.

10. In light of the above, this court is of the considered view that the petitioner had worked for the period of 28 years in the said department and before consideration of his case for regularisaation he has superannuated and consequently he is entitled to the benefit of the judgment passed in the case of Kashiram (supra).

11. Accordingly, the writ petition is allowed. The impugned order dated 18.08.2022 is quashed. The respondents are directed to reconsider the case of the petitioner in light of the observations made by this Court in the present case as well as in the case of Kashiram (Supra) with all consequential benefits from the date of his eligibility.

(Alok Mathur, J.)

Order Date :- 10.11.2022

Ravi/