Nand Kishore Pandey vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 1087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- WRIT - A No. - 17960 of 2020
 

 
Petitioner :- Nand Kishore Pandey
 
Respondent :- State Of U.P. Thru. Prin. Secy. Forest Deptt. Lko. And Ors.
 
Counsel for Petitioner :- Nitin Kumar Mishra,Azhar Faiz Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Chaudhary,J.

Heard learned counsel for the petitioner and the learned Standing Counsel.

The petitioner has approached this Court challenging the order dated 08.04.2019, whereby his application for regularization is rejected. The rejection is by the respondent no.-2-District Forest Officer, Faizabad (Ayodhya), on the ground that the petitioner is not entitled for regularization as he has not worked from 1989 till December, 2001. As per the rules, he was required to have worked from 29.6.1991 till 21.12.2001.

Learned counsel for the petitioner submits that the petitioner was working in the department in the year 1980 and in the year 1989 he was arbitrarily disengaged. The said order was challenged before the Labour Court which was allowed and the petition was allowed by the Labour Court by the judgment and order dated 28.04.1997. The said award was challenged in the High Court and was also affirmed by the High Court. The writ petition was dismissed on 16.7.2007 and even the special appeal filed against the same was also dismissed. It was only thereafter that the opposite party allowed the petitioner to work.

In the said circumstances, the petitioner filed a Writ Petition No.6290 (S/S) of 2015; Nand Kishore Pandey Vs. State of U.P. and others. In the said petition the Court held him to be entitled for regularization, ignoring the said judgment of this Court.

Learned Standing Counsel relying upon the impugned order submits that the petitioner has not worked during the relevant period and hence he is not entitled for regularization.

I have heard learned counsel for the parties and perused the record.

The earlier judgment passed by this Court in Writ Petition No.6290 (S/S) of 2015; Nand Kishore Pandey Vs. State of U.P. and others, finally decided the entire controversy, the said judgment reads as under:-

"Heard learned counsel for petitioner as well as learned standing counsel and perused the record.

The writ petition has been filed seeking direction to opposite parties no. 2 and 3 to consider the petitioner's service for regularization in accordance with the provisions of U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001.

Learned counsel for petitioner submits that the petitioner was initially appointed on daily wages on a class IV post of Mali w.e.f. 3.7.1980 at Kumarganj Range, District Faizabad. The service of petitioner was orally terminated without giving any prior notice w.e.f. 1.6.1989. The said termination order was challenged before the Prescribed Authority/Labour Court, Faizabad registered as Reference Case No. 150/1991. The Labour Court allowed the claim of petitioner and passed the award dated 28.4.1997 holding the disengagement of petitioner as illegal and directed for reinstatement of petitioner. The opposite parties challenged the award dated 28.4.1997 in the review application which was dismissed by the Prescribed Authority/Labour Court vide order dated 25.2.2002. Thereafter, the opposite parties filed Writ Petition No. 6786 (SS) of 2002 challenging the award dated 28.4.1997. It is submitted that in the said writ petition the Court had directed for compliance of the provisions of Section 17B of the Industrial Dispute Act and there was no order staying the operation of the award dated 28.4.1997, however, the petitioner was not allowed to join his duties. Writ Petition No. 6786 (SS) of 2002 was ultimately dismissed being devoid of merit vide judgment and order dated 16.7.2013 and the award was affirmed. The High Court directed to make payment to the petitioner expeditiously within two months from the date of production of certified copy of the order. It was thereafter that the petitioner was allowed to join on a class IV post w.e.f. 20.9.2013.

Submission is that since the disengagement of petitioner was declared to be illegal and the direction was issued to reinstate the petitioner by the award dated 28.4.1997 which has been affirmed by the High Court and the writ petition preferred in this regard by the opposite parties has been dismissed, as such, the petitioner shall be treated to be in continuous service from his initial engagement and shall be entitle to get the benefit of continuous service for the purpose of regularization.

It is also submitted that the petitioner is covered under U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001, however, the opposite parties have not considered the case of petitioner for regularization till date.

Learned standing counsel, on the basis of counter affidavit, on the other hand submits that since the petitioner has not continuously worked, as such, his case is not covered under U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001, he is not entitle to be regularized on the post on which he was initially appointed.

I have considered the submissions made by the parties' counsel and gone through the record.

It is undisputed that the petitioner was initially engaged on daily wages w.e.f. 3.7.1980. The petitioner was disengaged w.e.f. 1.6.1989. The said disengagement was challenged before the Labour Court and the Labour Court vide order dated 28.4.1997 had found the said disengagement not in accordance with law and has issued direction for reinstatement of the petitioner. The award passed by the Labour Court has been affirmed by the High Court as the writ petition challenging the said award by the opposite parties has been dismissed vide judgment and order dated 16.7.2013. It is only thereafter that the opposite parties have allowed the petitioner to work w.e.f. 20.9.2013. Since the disengagement of petitioner has been declared illegal and in compliance of the award passed by the Labour Court he was entitled to be reinstated in service, it can very easily be held that the petitioner shall be treated to be in continuous service since his initial appointment. The petitioner during the period 28.4.1997 till 20.9.2013 was not allowed to join his duties due to the fact that the opposite parties had challenged the award, however, the writ petition preferred in this regard was ultimately dismissed vide judgment and order dated 16.7.2013. The petitioner cannot be held responsible for not working during the aforesaid period as he was not allowed to join his duties although there was no restrain order by the High Court in Writ Petition No. 6786 (SS) of 2002. The petitioner, as such, is entitle to get the benefit of continuous service for the purpose of regularization on the post on which he has been working.

The case of the petitioner is, therefore, required to be considered for regularization under the U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001.

It is needless to observe that the petitioner may not be entitled for the remunerations for the period he has not worked, however, he shall be entitled to get continuity of service for service benefits such as regularization, etc.

The writ petition as such is allowed. The opposite party no. 2, District Forest Officer, Prabhagiya Nideshak, Forest Department, Faizabad or any other competent authority as the case may be, shall consider the case of the petitioner for regularization in the light of U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 giving him benefit of continuous service since his initial engagement dated 3.7.1980 and pass appropriate orders in accordance with law, expeditiously, say within a period of three months from the date a certified copy of this order is placed before him."

The Court found that the petitioner is entitled to be given the benefit of U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001. The Court specifically held that "The petitioner, as such, is entitle to get the benefit of continuous service for the purpose of regularization on the post on which he has been working." After such a categorical findings of this Court, which was also affirmed by the Court in the special appeal, it was not open for the respondent-District Forest Officer to pass order which is directly in teeth of the judgment of this Court. The findings of this Court squarely covers the matter and the District Forest Officer is bound by the same. In fact, the District Forest Officer has violated the orders of this Court while trying to give findings contrary to the same and reopen the controversy settled by this Court.

In view thereof, the impugned order dated 08.04.2019, which is in teeth of the judgment dated 3.1.2019 passed in Writ Petition No.6290 (S/S) of 2015; Nand Kishore Pandey Vs. State of U.P. and others, cannot stand and is hereby set aside. The respondents no.3-The Forester (Van Vidhi), Social Forestry Kumarganj Range, District Ayodhya, is directed to pass appropriate orders for regularization of the petitioner and grant notional benefit to the petitioner as he has already attained the age of superannuation, within a period of six weeks from the date a certified copy of this order is produced before him.

(Vivek Chaudhary,J.)

Order Date :- 11.1.2023

Arjun/-