Tadak Nath Yadav 5405S/S2013 vs State Of U.P.Thru ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:51027-DB
 
RESERVED
 
Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 107 of 2016
 

 
Appellant :- Tadak Nath Yadav 5405s/S2013
 
Respondent :- State Of U.P.Thru Prin.Secy.Rural Engineering Service And Anr.
 
Counsel for Appellant :- Revati Raman Ojha,Pt. S. Chandra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Attau Rahman Masoodi,J.

Hon'ble Om Prakash Shukla,J.

(Application for condonation of delay)

(1) Heard Shri Pt. S. Chandra, learned Counsel representing the appellant and learned State Counsel representing the respondents.

(2) This intra Court appeal filed by the appellant is barred by limitation by two months.

(3) Learned State Counsel representing the respondents does not have any objection if delay of two months in filing the instant appeal is condoned.

(4) Having gone through the averments made in the affidavit filed in support of the application seeking condonation of delay, this Court is satisfied that delay has sufficiently been explained.

(5) The application is, accordingly, allowed and delay in filing the special appeal is hereby condoned.

(Order on Appeal)

(6) This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1955, has been filed by the appellant, assailing the judgment and order dated 09.12.2015 passed by the learned Single Judge, whereby Writ Petition No. 5405 of 2013 (S/S) filed by the appellant, seeking to quash the order 09.05.2013, by which his claim for re-engagement and regularization had been rejected, was dismissed by the learned Single Judge.

(7) The record available before this Court in the instant appeal would reveal that the appellant was engaged as Work Supervisor on muster roll in the work-charge establishment in the month of November, 1988 in the exigency of the work, under the Assistant Engineer, Department of Rural Engineering, Faizabad. He, thereafter, continued to work on need based in the department in the following manner :-

Name

Period

Days

Shri Tadak Nath Yadav

11/1988

30 days

12/1988

31 days

01.09.1989 to 30.09.1989

30 days

01.03.1989 to 31.03.1989

31 days

01.04.1989 to 30.04.1989

30 days

01.05.1989 to 31.05.1989

31 days

(8) Apparently, the appellant worked on muster roll in the work-charge establishment for 61 days in the year 1988 and 122 days in the year 1989.

(9) In view of the aforesaid days of service rendered by the writ petitioner/appellant, the primary reason appended for dismissal of the writ petition by the learned Single Judge is that appellant/petitioner had not completed 240 days of continuous service in a calendar year in work charge establishment on muster roll and, therefore, he is not entitled for regularization and for this learned Single Judge has placed reliance upon Secretary, State of Karnataka Vs. Uma Devi : 2006 (4) SCC 1

(10) However, the learned Counsel for the appellant, placing reliance upon the judgments of the Apex Court rendered in Vishnu Traders Vs. State of Haryana and others : 1995 Supp (1) SCC 461 as well as in U.P. State Electricity Board Vs. Pooran Chandra Pandey and others : 2007 (25) LCD 1668, has submitted that on a consideration of the decision in the case of Uma Devi (supra), the Hon'ble Supreme Court in the case of U.P. Electricity Board Vs. Pooran Chandra Pandey and others (supra), has held that the decision of Uma Devi's case (supra) cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution of India. His submission is that several juniors to the appellant have been retained in service and their services have also been regularized, hence the action of the respondents in not regularizing the services of the appellant is arbitrary and unreasonable and also violative of Article 14 of the Constitution of India.

(11) Learned Counsel for the appellant has further submitted that the appellant was engaged on the post of Work Supervisor on muster roll in the work-charge establishment on 01.01.1988 under the Assistant Engineer, Department of Rural Engineering Services in District Faizabad and he continued to work as such under the same authority till 31.12.1991. Thereafter, his services were transferred to Assistant Engineer-III, Department of Rural Engineering Services, Faizabad, where he was working till 21.08.2007 when his service was orally terminated by the Executive Engineer, Department of Rural Engineer. In the said background, the appellant aggrieved by the aforesaid oral termination, preferred a writ petition, bearing No. 5451 (S/S) of 2008 before this Court. During pendency of the said writ petition, the appellant preferred another writ petition, bearing No. 6337 (S/S) of 2007, seeking to quash the order dated 12.12.2007, by which his claim for regularization was rejected. Subsequently, both the aforesaid writ petitions were disposed of by a common judgment and order dated 31.07.2009, directing the respondents to consider and decide the pending representation of the appellant, in accordance with law.

(12) Learned Counsel for the appellant has contended that in compliance of the judgment and order dated 31.07.2009, the claim of the appellant for regularization was rejected by order dated 09.05.2013, which has been assailed by the appellant in Writ-A No. 5405 of 2013. The learned Single Judge, without considering the fact that the appellant has served with the department of the respondents for a long period of 12 years, has dismissed the writ petition vide impugned order dated 09.12.2015, which is contrary to the dictum of the Apex Court rendered in U.P. Electricity Board Vs. Pooran Chandra Pandey and others (supra).

(13) Per contra, learned Standing Counsel has submitted that looking to the exigency of work, the appellant was engaged on muster roll in the work charge establishment in November, 1988 under Assistant Engineer, Department of Rural Engineering Services in District Faizabad. According to him, he worked from time to time w.e.f. November, 1988 to 31.05.1989. However, in the year 2000, the engagement in work-charge establishment was abolished by the Government. He submits that the appellant has never worked for more than 240 days in a calendar year, therefore, he has no right to claim his regularization at par with some other employees whose services were regularized.

(14) The learned Standing Counsel while supporting the impugned order passed by the learned Single Judge has argued that the impugned order has rightly been passed and the writ petition has rightly been dismissed by the learned Single Judge vide impugned order, as the appellant has no right to claim his regularization as a matter of right in view of the dictum of the Apex Court in Uma Devi's case (Supra).

(15) Having regard the submissions advanced by the learned Counsel for the parties and going through the record available before this Court in the instant appeal, it is required to be noted herein that this Court finds that the judgment rendered by the Apex Court in the case of Pooran Chandra Pandey and others (supra), came to be reconsidered by a three Judges Bench of the Apex Court in the case of Official Liquidator Vs. Dayanand and others : (2008) 10 SCC 1, holding that the attempt made in Pooran Chandra Pandey's case (supra) by a two Judges Bench to water down the effect of Uma Devi's case (supra), was impermissible. The Bench further went on to explain that the judgment in the case of Pooran Chandra Pandey's case (supra) was obiter and reiterated the law in the case of Uma Devi (supra). The relevant part of the dictum of the Apex Court in Official Liquidator Vs. Dayanand and others (supra) is reproduced as under :-

"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.

91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.

92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in UP State Electricity Board vs. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."

(emphasis supplied)

(16) In view of the aforesaid proposition of law, the fulcrum of the argument of the learned Counsel representing the appellant has to be repelled in view of the decision of the Apex Court in the case of Official Liquidator (supra).

(17) It is apt to mention that on the question of regularization in service, the Apex Court earlier decisions were considered by Constitution Bench of Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi (Supra), wherein the Apex Court considered the question as to whether regularization can be allowed to a person simply because he has worked for a long time. While considering the said question, fundamental right of equal opportunity of employment enshrined under Article 16 of the Constitution has been held to be a basic feature of Constitution. The Apex Court in Uma Devi (supra), therefore, very categorically cautioned the High Courts as under :

"The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme."

(18) The above question in the light of decision in Uma Devi (supra) has been considered in a catena of decisions and following Uma Devi (supra), the Apex Court has held that regularization is not a source of recruitment and if initial appointment was made without complying with the requirement of Article 16 (1) of the Constitution, regularization was not permissible particularly in absence of any statutory provision. In Pinaki Chatterjee & others Vs. Union of India & others : 2009 (5) SCC 193, the Apex Court observed that it is no doubt true that the respondents under certain circumstances had been appointed directly as casual mates and they continued as such and further by virtue of their continuance they acquired temporary status but that by itself does not entitle them to be regularized as mates since that would be contrary to the rules in force. The Apex Court further held that the respondents did not acquire a right for regularization as mates from the mere fact of their continuance as casual mates for a considerable period.

(19) In State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429, the Apex Court following the decision in Uma Devi (supra) held as under :-

"The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme."

(20) In University of Rajasthan and others vs. Prem Lata Agarwal and others : (2013) 3 SCC 705 referring to Constitution Bench judgment in Uma Devi (supra), the Apex Court said :-

".....the Constitution Bench, after survey of all the decisions in the field relating to recruitment process and the claim for regularization, in paragraph 43, has held that consistent with the scheme for public employment, it is the duty of the court to necessarily hold that unless the appointment is in terms of the relevant rules, the same would not confer any right on the appointee. The Bench further proceeded to state that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules."

(21) Further, in Secretary to Government, School Education Department, Chennai and others Vs. Thiru R. Govindaswamy and others (2014) 4 SCC 769, referring to Uma Devi (supra), the Apex Court observed that there is no fundamental right vested on those employees who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution.

(22) In Upendra Singh Vs. State of Bihar and others, (2018) 3 SCC 680 referring to Uma Devi (supra), the Apex Court observed as under :-

"Law pertaining to regularization has now been authoritatively determined by a Constitution Bench judgment of this Court in Secretary, State of Karnataka and Ors. vs. Umadevi and Ors. (2006) 4 SCC 1. On the application of law laid down in that case, it is clear that the question of regularization of daily wager appointed contrary to law does not arise. This ration of the judgment could not be disputed by the learned Counsel for the Appellant as well."

(23) In view of above authorities and binding precedents of Hon'ble Supreme Court and considering the facts and circumstances of the present case, particularly the specific findings recorded by the learned Single Judge on the basis of material available on record that the status of the engagement of the appellant in the work charge establishment is only on muster roll and he did not work 240 days in a calendar year, we are in agreement with the reasoning given by the learned Single Judge while dismissing the writ petition by impugned order. Thus, we are not inclined to take any view other than the view taken by the learned Single Judge.

(24) The instant special appeal is, accordingly, dismissed. However, there will be no order as to costs.

(Om Prakash Shukla, J.)          (Attau Rahman Masoodi, J.)
 

 
Order Date :- 3rd August, 2023
 
Ajit/-