Allahabad High Court
Ram Prakash Tiwari vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 16 December, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:83090
Court No. - 20
Case :- WRIT - A No. - 5 of 2023
Petitioner :- Ram Prakash Tiwari
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Irrigation Lko. And 2 Others
Counsel for Petitioner :- Badrish Kumar Tripathi,Awnish Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for petitioner and learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 07.10.2022 whereby petitioner's claim for regularization on a Group-D post with opposite parties has been rejected. A further relief of all consequential benefits due to petitioner's regularization since 21.12.2001 has also been sought.
3. It has been submitted that initially petitioner was engaged as a Daily Wage Employee by opposite party on 19.08.1986 whereafter he was orally dispensed from service on 01.07.1989. Aforesaid disengagement from service was challenged before Labour Court in Case No. 40 of 1999 which was allowed by means of award dated 05.09.2001 setting aside the oral order dispensing with services of petitioner and directing opposite parties to provide arrears of wages. The award also held oral order dated 01.07.1989 dispensing petitioner from service to be illegal. The Claim Petition has thereafter been allowed with all consequential benefits.
4. The said award was challenged by the State in Writ Petition No.3668(S/S) of 2002 which was dismissed by means of judgment and order dated 09.03.2017 which attained finality.
5. In view of aforesaid, learned counsel for petitioner submits that petitioner's claim for regularization has been rejected only on the ground that he did not render continuous service from initial date of engagement till the date when the Rules were enforced is absolutely incorrect in view of said facts that once orders of the opposite parties dispensing with services of petitioner have been held to be illegal, continuity of service would thereafter be deemed in favour of petitioner.
6. Learned State Counsel on the basis of counter affidavit has refuted the submissions advanced by learned counsel for petitioner with submission that petitioner's claim for regularization was considered according to Uttar Pradesh Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as Regularization Rules of 2001) which specifically provides that a person would be entitled for regularization only in case he was in service prior to 29.06.1991 and was continuously serving in that capacity as on 21.12.2001, which is the date of enforcement of the rules. It is submitted that since admittedly petitioner was disengaged from service in year 1989 and was not in service as on 21.12.2021, his claim has rightly been rejected.
7. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is admitted that petitioner was initially engaged in service as a Daily Wage Employee in the Department on 19.08.1986 whereafter his services where dispensed with. Claim Petition filed against such disengagement from service has thereafter been allowed holding petitioner's termination to be illegal. The Claim Petition has been allowed with all consequential benefits. The award has also been upheld by this Court as indicated herein above.
8. In view of the specific wordings of the Award passed in favour of petitioner, it is therefore evident that petitioner's termination from service was not only held to be illegal but continuity of service was also directed in his favour and such directions have already been upheld by this Court due to which petitioner would necessarily be deemed to be in continuous service from 19.08.1986 till at least 21.12.2001, which is the date of enforcement of said Regularization Rules of 2001.
9. There is yet another aspect to the dispute. The opposite parties have taken a specific stand that petitioner was not entitled for regularization only on account of fact that he has not rendered continuous service since prior to 29.06.1991 till 21.12.2001.
10. Rule 4(1)(a) of Regularization Rules of 2001 reads as under:-
"4. (1) Any person who--
(a) was directly appointed on daily wage basis on a Group 'D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and
......"
11. The said controversy came for consideration in the case of Janardan Yadav v. State of U.P. reported in [(2008) 1 UPLBEC 498]. Relevant paragraphs 6 and 8 of the said judgment are as under:-
"6. The only requirement under Rule 4(1)(a) are that the incumbent was directly appointed on daily wage basis on a Group 'D' Post in a Government Service before 29.6.1991 and is continuing in service as such on the date of commencement of the said Rules. The further requirement under Clause (b) of Rule 4(1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis."
"8. The said stand is contrary to the Rules and it amounts to reading certain words in Rule 4(1) which is not provided therein by the Rule framing authority. The rule framing authority has not framed the aforesaid Rules in manner as are being read by the respondents. Since the Rules are applicable only to daily wage employees, the Rules framing authority was aware that such employee could not have worked continuously throughout and, therefore, has clearly provided that the engagement must be before 29.6.1991 and he is continuing as such on the date of commencement of the Rules. If a daily wage engagement has been made before 29.6.2001 and was continuing on 21.12.2001, meaning thereby the daily wage engagement remained necessity of the department or the requirement thereof for more than 10 years, for such a person only, the benefit of regularization under 2001 Rules has been provided, and it nowhere requires further that the incumbent must have worked continuously from the date of initial engagement till the commencement of these Rules and to read these words would amount to legislation, which is not permissible in law. While interpreting the statute, it is well settled that neither any word shall be added nor be subtracted but if a plain reading of the statute is clear and unambiguous, the same has to be followed as such. This Court does not find any ambiguity in Rule-4(1) providing as to which kind of persons would be entitled for regularization and it nowhere requires that the incumbent must have worked throughout from the date of initial engagement till the date of commencement of the Rules."
12. Aforesaid judgment rendered in Janardan Yadav(supra) still holds the field and is therefore a good law. On the aforesaid aspect as well combined with a reading of Rule 4 of Regularization Rules of 2001, it is evident that there is no requirement for a daily wage employee to be in continuous service from the initial date of engagement till the date of enforcement of the Regularization Rules. On this aspect as well, this Court finds in favour of the petitioner.
13. In view of aforesaid, the impugned order dated 07.10.2022 being against not only the statutory provisions but also judgment rendered by this Court, is hereby quashed by issuance of a writ in the nature of Certiorari. A further writ in the nature of Mandamus is issued directing authority concerned to pass appropriate orders regularizing of petitioner's service in terms of Regularization Rules of 2001, within a period of six weeks from the date a certified copy of this order is produced before the authority concerned.
14. Consequently, the petition succeeds and is allowed. The parties to bear their own costs.
Order Date :- 16.12.2023
kvg/-
