Kanhai Lal And Others vs State Of U.P.Through Principal ...
2023 Latest Caselaw 23139 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Court No. - 5		Neutral Citation No. - 2023:AHC-LKO:56966											[Reserved]
 
Case :- WRIT - A No. - 4621 of 2010
 

 
Petitioner :- Kanhai Lal And Others
 
Respondent :- State Of U.P.Through Principal Secy.Forest Dept.And Ors.
 
Counsel for Petitioner :- A.R.Masoodi,Anil Kumar,Shivam Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. Heard Shri Shivam Sharma, learned counsel for the petitioners and Shri Rahul Kapoor, learned counsel for the respondents.

2. By means of the present writ petition, the petitioner has prayed for issuance of a writ in the nature of Certiorari quashing the impugned orders dated 5.6.2010 as contained in Annexure nos.1 and 2 to the writ petition respectively with further direction to the opposite party no.3 to consider the petitioners for regularisation/ absorption on the post of Foresters by ignoring the orders dated 5.6.2010. The petitioner has further prayed for issuance of a writ in the nature of Mandamus commanding the opposite parties to continue the petitioners in service and pay them salary regularly every month with all service benefits.

3. Factual matrix of the case is that the petitioners are Group 'C' employees who have been working in U.P. Forest Department as Seasonal/ Daily Wagers since last more than 19-33 years. Earlier the cadre of Jamadars and Moharrirs belonged to lower subordinate forest service which was governed under the Lower Subordinate Forest Service Rules, 1980. The cadre strength of Jamadars and Moharrirs in the successor State of U.P. is evident from the letter of this date (7.11.2000). On 20.8.2001, the appointing authorities in pursuance of the letter of this date issued by opposite party no.2 regularized the services of daily wage employees in various Forest Circles. The posts in Forest Circle Bareily are also available and the petitioners deserve to be considered for regularisation against the said posts.

On 16.10.2001, the State Government merged the cadre of Jamadars and Moharrirs into the cadre of Foresters which is governed under the Subordinate Forest (Rangers, Deputy Rangers & foresters) Service Rules, 1951 by virtue of 4th Amendment in the said Rules, however, their claim for regularisation remained unattended. The petitioner writ petition no.927/2003 before this Court. Vide orders dated 12.7.2005 and 22.8.2005 the Court passed interim order directing the opposite parties to pay regular salary to the petitioner for whole of the year and consider their claim for regularization. Looking to the interim order passed by the Court on 12.7.2005 as well as other orders passed by the Court, the petitioners were granted the benefit of regular pay scale for whole of the year subject to the outcome of writ petition. As regards regularization, the opposite parties mentioned that as and when posts were available, the claim shall be considered.

On 11.8.2009, even otherwise the post of Seasonal Moharrirs with the amendment of Rules by notification dated 16.10.2001 stood upgraded against which all Moharrirs are being allowed toe work. This position is evident from one such order of this date. On 15.3.2010, the writ petition filed by the petitioners came up for hearing on this date when the Court taking note of the fact i.e. 4th Amendment in Subordinate Forest Service Rules directed the opposite parties to consider the case of petitioners for regularisation according to Regulation Rules, 1998 as applicable to Group 'C' posts.

On 5.6.2010, the opposite party no.3 instead of extending the benefit of regularization to the petitioners under U.P. Regularisation of Daily Wages Appointment on Group 'C' Posts (outside the purview of UP. Public Service Commission) Rules, 1998 rejected their claim illegaly and simultaneously the order dated 22.8.2005 whereby the petitioners were continued on payment of regular salary for whole of the year has also ben cancelled in most illegal and arbitary manner. Hence, this writ petition.

4. Learned counsel for the petitioner submitted that the impugned orders passed by respondent no.3 rejecting the claim of petitioners for regularisation is wholly misconceived and baseless, inasmuch as all the petitioners have been appointed prior to 29.6.1991 and have been regularly working. He next submitted that the petitioners are also possessed with the requisite qualification for appointment on the posts against which they were appointed initially. Therefore, the reason assigned in the impugned orders being bad in the eye of law renders the impugned orders as null and void.

5. Learned counsel for the petitioner next submitted that the application of Regularization Rules, 1998 has been settled by the Hon'ble High Court by taking note of the amendment made in Subordinate Service Rules, 1951 vide notification dated 16.10.2001, therefore, it is not open to the respondents to frustrate the finality of the judgment passed by the court in respct of application of said Rules for the purposes of regularisation of the petitioners.

6. Learned counsel for the petitioner next submitted that failure on the part of respondents concerned not to regularize the services of the petitioners in the year 2001 does not leave any scope for any technical objection as has been asigned in the impugned order. Any such objection amounts to discrimination particularly when similarly situated persons have been regularized in service.

7. Learned counsel for the petitioner next submitted that in view of the definition of 'seasonal employees' in the Service Rules, the claim of the petitioners is wholly covered within the scope of Regularization Rules, so as to faciliate their merger in the cadre of Foresters.

8. Learned counsel for the petitioners lastly submitted that the cancellation of the order dated 22.8.2005 without any lawful justification is wholly illegal, arbitrary and without authority of law.

9. Per contra, learned counsel for the respondents submitted that the claim of the petitioners has not been rejected on the ground of qualification only, it has been rejected on the ground that in view of the Regularization Service Rules, 2016, the petitioners were not having requisite conditions for being considered to be regularized.

10. This Court vide order dated 12.7.2005 passed the following order:

"Heard learned counsel for the petitioners and learned counsel for the State.

The petitioners, who were appointed as Seasonal Daily Wages Employees on the posts of Seasonal check Moharrir (fudklh eqa'kh) at various points of time from 1977 to 1991, are continuing in service, but they are not getting salary throughout the year. According to the long drawn practice/ arrangement, they get the regular wages for eight months in a year, however, during the remaining four months they are getting daily wages.

Learned Counsel for the petitioners has placed for perusal of this Court a Judgment passed by this Court at Allahabad in Writ Petition No.7913 (SS) of 1990. This judgment appears to indicate that the petitioners of that case had put in long service in the Forest Department ranging from 6 years to 25 years and they were held to be entitled for regularization on the post of Export Moharrir. The petitioners are also similarly circumstanced employees, who have put in various terms of services ranging from 15 to 28 years.

In view of this long during of service, it is provided that the opposite parties shall examine and consider the petitioners' case for regularization in the light of the Judgment referred to above.

Until they are absorbed permanently, they shall be paid their monthly wages/ pay in regular pay-scale throughout the year as they draw during eight months.

It is expected that a decision in the matter will be taken within three months.

List thereafter for hearing."

11. On perusal of the above-extracted order, it is crystal clear that the respondents were directed to examine and consider the petitioner's case for regularization in the light of the judgment rendered in Writ Petition No.7913 (SS) of 1990 with further direction that until they are absorbed permanently, they shall be paid their monthly wages/ pay in regular pay-scale throughout the year as they draw during eight months.

12. It is noticed that this Court had previously recorded a finding that the petitioners are duly eligible for regularization and while considering the said fact they were persuaded by the orders passed by the respondents themselves regularizing the services of similarly similarly situated persons who are working on seasonal basis. The respondents cannot grant benefit in favour of a particular set of individual while refusing with regard to the petitioners and petitioners have further submitted that the respondents themselves are regularly passing orders of regularization with regard to the persons who were working on seasonal basis and to that extent had perused an order dated 30.12.2021 where order of regularization has been passed with regard to Janardhan Lal Mishra on 30.12.2021. Indisputedly the said government servant was also working on seasonal basis.

14. Since the Court cannot say to the concerning authority to regularize any employee but direction is issued to consider the regularization, but it does not mean that the Court has given any liberty to the concerning authority to pass any order contrary to the findings returned by the Court. It appears that in the present case the competent authority has not followed the directions of this Court properly. To be more precise, it appears that the claim of the petitioners for regularization is being rejected time and again for rejection sake without having any legal basis to this effect and the petitioners are being compelled to approach the Court of law again and again. This is a harassment of a low paid employee, therefore, this attitude cannot be appreciated.

15. It is noticed that in fact the respondents are over looking the findings of the writ Court and repeatedly rejecting the representation for regularization made by the petitioners. This Court is of the considered view that the petitioners are entitled to be regularized and hence, it is only that necessary orders may be passed for which suitable directions are given to the respondents.

16. In the light of the above, the writ petition is allowed. Respondents are directed to pass necessary order with regard to regularization of the petitioners within six weeks from the date a certified copy of this order is produced before him. While passing the said order, respondent no.2 shall consider the previous judgments of this Court passed in order in Writ Petition No.7913 (SS) of 1990 and also the said orders will be passed for regularization of the petitioners from the date similarly situated persons have been regularized.

 
Order Date :- 24/08/2023
 
GK Sinha								[Irshad Ali, J.]