Allahabad High Court
Vivek Kumar vs State Of U.P.Thru ... on 19 January, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
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Court No. - 4
Case :- WRIT - A No. - 2324 of 2020
Petitioner :- Vivek Kumar
Respondent :- State Of U.P.Thru Prin.Secy.Forest Deptt. Lko And Ors.
Counsel for Petitioner :- Krishna Madhav Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.
2. Present writ petition is filed by the petitioner challenging the order dated 23.11.2019 whereby his claim for regularization is rejected.
3. Earlier also, the claim of petitioner for regularization is rejected by an order dated 30.05.2016. The same was challenged before this Court by way of Writ Petition No.20335 (S/S) of 2016; 'Vivek Kumar Vs. State of U.P. and Others'. The petition was allowed by judgment and order dated 29.08.2019 and the relevant portion of the said order reads as:-
"9. Heard learned counsels for the contesting parties and perused the records.
10. From a perusal of records it clearly comes out that the claim of the petitioner for regularization has been rejected by the respondents by means of the impugned order dated 30.05.2016 on the ground that his name has not been found entered in the relevant records. The said averment is patently belied from the records as filed by the respondents themselves before this Court in the earlier round of litigation as per the counter affidavit inasmuch as a specific averment had been made in the earlier counter affidavit of the petitioner not having worked continuously from 29.06.1991 to 21.12.2001 as per the averment made in paragraph 7 of the earlier counter affidavit yet as the same time,as per the records filed by the respondent themselves, the working of the petitioner from February 1991 to October 2004 was certified through records but the name of the petitioner was not entered in the cash book. Even now the respondents have indicated in paragraphs 10 and 11 that though the petitioner has worked yet has not worked continuously from 29.06.1991 up to 21.12.2001. Continuous working is not a sine qua non as is sought to be made out by the respondents taking into consideration the law laid down by this Court in the case of Janardan Yadav (supra) wherein this Court has held as under:-
"The only question up for consideration is whether the said Rules require continuous service throughout, i.e., from the date of initial engagement till the commencement of the Rules. In my view, there is no such requirement under the Rules as is apparent from perusal thereof. Rule 4(1) of Rules 2001 is reproduced as under:
"4. Regularisation of daily wages appointments on Group ''D' posts.- (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
(b)possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''D' post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders."
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."
11. Thus, it is apparent that even if the petitioner has not worked continuously that would not be a bar to the claim of the petitioner being considered for regularization taking into consideration that the only requirement is of the incumbent having been engaged prior to date of 29.06.1991 and being in a engagement/service as on the date of promulgation of the rules i.e 21.12.2001.
12. So far as the grounds taken by the respondents in the impugned order of the name of the petitioner not being found in the relevant records,including cash book suffice to state that the respondents had themselves brought on record the detail chart of the working of the petitioner from February, 1991 till October, 2004 which has been verified by the Forest Range Officer, Maya Range, Faizabad. The mere fact that though the working was certified yet the same did not tally with the cash book though calls for an administrative inquiry by the respondents themselves yet at the same time does not and cannot take away the fact of the working of the petitioner as clearly comes out from a perusal of the aforesaid documents which have been brought on record as part of annexure 6 to the petition. Thus, even the said ground as taken by the respondents is legally not sustainable in the eyes of law.
13. Accordingly, taking into consideration the aforesaid discussions, the writ petition deserves to be allowed and is allowed. A writ of certiorari is quashing the impugned order dated 30.05.2016, a copy of which is annexure 1 to the petition. A writ of Mandamus is issued directing the respondent no. 3 i.e Divisional Forest Officer, Forest Division, Faizabad to consider the case of the petitioner for regularization taking into consideration the observations made above as well as the judgment of this Court in the case of Janardan Yadav (supra). Let the said consideration be done within a period of three months from the date of communication of a certified copy of this order."
4. The Court gave specific findings that reliance has placed upon the cash book which are not tallying with the certificates and registers of working of the petitioner. The same is wrong on part of respondents. The same at best may require an administrative inquiry by the respondents with regard to their own working but it would not take away the fact of the working of the petitioner as clearly comes out from perusal of the document. The Court has also relied upon the judgment passed in case of 'Janardan Yadav Vs. State of U.P. and Ors.' reported in (2008) 1 UPLBEC 498 which settles the law that any artificial break in working has to be ignored in case the petitioner was found to be working on both the cut-off dates. In the present case, the impugned order itself shows that the same is relied upon the entries of the cash book, which, the High Court had already considered in its earlier order and also the artificial break with regard to the petitioner.
5. Thus, the impugned order dated 23.11.2019 cannot stand and the same is set aside.
6. The petitioner is found to be covered by the Uttar Pradesh Regularization of Daily Wagers Appointment of Group D Posts Rules, 2001 (Regularization Rules, 2001) and, therefore, respondent no.3 Divisional Forest Officer, Forest Division, Ayodhya, U.P. is directed to pass fresh order with regard to regularization of the petitioner within a period of six weeks from the date of production of certified copy of this order before him.
7. With the aforesaid, present writ petition stands allowed.
Order Date :- 19.1.2023/Arti-
[Vivek Chaudhary,J.]
