Allahabad High Court
Brij Bhushan Vishwakarma vs State Of U.P. Thru. Prin. Secy. ... on 13 April, 2023
Bench: Devendra Kumar Upadhyaya, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 189 of 2023
Appellant :- Brij Bhushan Vishwakarma
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Jail And Reform Services, Civil Secrt. Lko. And Others
Counsel for Appellant :- Mayur Gautam,Santosh Kumar Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Om Prakash Shukla,J.
Heard Sri Mayur Gautam, learned counsel for appellant-petitioner and Sri Amitabh Rai, learned Additional Chief Standing Counsel for the State-respondents.
Having regard to the reasons indicated in the affidavit filed in support of the application seeking condonation of delay, we find that delay has sufficiently been explained.
Accordingly, application is allowed and the delay in filing the special appeal is hereby condoned.
The appellant-petitioner by filing this intra-court appeal under Chapter VIII Rule 5 of the Rules of the Court questions the judgment and order dated 19.11.2022 whereby Writ-A No.565 of 2008 filed by him has been dismissed and his claim for continuance on a class IV post in District Jail, Raebareli and further claim of his regularization in service have been rejected.
It has been submitted by learned counsel for appellant-petitioner that the appellant-petitioner was engaged on daily wage basis on 26.12.1991 whereafter he continuously worked on daily wage basis, however, by an oral order, his services were terminated on 31.03.2004. He has drawn our attention to certain experience certificates issued by various Jail authorities and has also enclosed some attendance sheets. It has further been argued by learned counsel for appellant-petitioner that in terms of the provisions contained in Uttar Pradesh Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001, the appellant-petitioner was entitled to be regularized in service. However, once the appellant-petitioner made a request for his regularization, by oral order dated 31.03.2004, his services have been terminated. In the aforesaid view of the matter, submission, thus, is that learned Single Judge has not considered the aforesaid aspects of the matter and has thus wrongly dismissed the writ petition.
On the other hand, learned State Counsel has submitted that a daily wager appointee does not have any right to be continued in service and further that his appointment was not made against any sanctioned post. In this view, his submission is that the special appeal should be dismissed at its threshold.
We have considered the submissions made by learned counsel for parties and also perused the records available before us on this special appeal.
As admitted by the appellant-petitioner himself he was engaged on daily wage basis on 26.12.1991. However, there is nothing on record which establishes that the appellant-petitioner's engagement on daily wage basis was against any sanctioned post. To the contrary, the case put up by the State authorities before learned Single Single was that in the exigencies of work and as and when the work it was required, he was engaged on daily wage basis and further that he was never engaged against any sanctioned post on regular basis. In this view, we may also notice that in terms of the provisions contained in Regularization Rules, 2001, any daily wager who was appointed on Group-D post in the government service on or before 29 June, 1991 and was continuing in service on the date of promulgation of the said Rules i.e. 21st December, 2001 is entitled to be considered for regularization in service. The appellant-petitioner himself has admitted that he was engaged for the first time on daily wage basis on 26th of December, 1991 i.e. after the cut off date as mentioned in the Regularization Rules, 2001.
In the aforesaid view of the matter, the claim of the appellant-petitioner for regularization of his service under Regularization Rules 2001 is not tenable. We also notice that the appellant-petitioner has utterly failed to show that he was ever appointed or engaged even on daily wage basis against any sanctioned post.
Hon'ble Supreme in the latest judgment in the case of Vibhuti Shankar Pandey vs State of Madhya Pradesh and others, reported in AIR 2023 Supreme Court 832 has held that in case any temporary or daily wage appointment is made not against any sanctioned post, no such employee can insist for regularization of his service.
Learned counsel for the appellant-petitioner has placed reliance on two judgments of Hon'ble Supreme Court in the cases of (1) Prem Singh versus State of Uttar Pradesh and others reported in (2019) 10 SCC 516 and (2) Sheo Narain Nagar and others versus State of Uttar Pradesh and others decided on 13.11.2017 (Civil Appeal No.18510 of 2017) and has submitted that in view of the law laid down by Hon'ble Supreme Court in these two judgments, the case of the appellant-petitioner could not have been rejected for his further engagement and also for his regularization in service.
When we consider the law laid down by Hon'ble Supreme Court in the case of Prem Singh (supra), what we find is that the said matter related to work charge employees who were initially engaged in work charge establishment and were allowed to continue till they attained the age of superannuation. Thus, Prem Singh (supra) has no application so far as the claim of the appellant-petitioner in this case is concerned.
As far as the judgment in the case of Sheo Narain Nagar and others (supra) is concerned, in the said case the employee concerned was initially engaged on daily wage basis, however later on, he was appointed on contractual basis and subsequently the authority concerned had issued an order appointing him as regular employee on minimum pay scale. Thus, the facts of the case of Sheo Narain Nagar (supra) are also distinguishable as against the facts of the present case.
In the aforesaid view of the matter, the special appeal lacks merit which is hereby dismissed.
However, there will be no order as to costs.
Order Date :- 13.4.2023
Renu/-
