Allahabad High Court
Moinuddin S/O Nattha vs State Of U.P. Thru Secy. Secretary ... on 20 January, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - A No. - 2142 of 2012
Petitioner :- Moinuddin S/O Nattha
Respondent :- State Of U.P. Thru Secy. Secretary Forest Deptt. And Others
Counsel for Petitioner :- Ramesh Kumar Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Brij Raj Singh,J.
Heard learned counsel for the petitioner, Sri P.C. Rai, learned Additional Chief Standing Counsel for the respondents State and perused record.
Learned counsel for the petitioner has submitted that the petitioner was engaged as daily wage employee in the year 1980 on Class-IV post and he filed Writ Petition No.8022 (S/S) of 2011 for regularization which was disposed of vide order dated 4.11.2011 with direction that the representation of the petitioner will be decided in terms of the order passed in Writ Petition No.3841 (S/S) of 2011 (Mahesh Prasad Awasthi and others. Vs. State of U.P. and others.). In pursuance of the order passed by this Court, the impugned order dated 2.3.2012 has been passed by the authority concerned and he has rejected the claim of the petitioner. The opposite party has taken stand in the impugned order that the petitioner was not regularly working as Class-IV employee prior to 29.9.1991 till 21.12.2001, therefore, he is not entitled for regularization. Learned counsel for the petitioner has further submitted that the impugned order cannot survive in view of law declared by this Court in the case of Janardan Yadav. Vs. State of U. P.) reported in [2008 (1) ADJ 60] (Writ Petition No.38170 (S/S) of 2005 decided on 14.12.2007), wherein it has been held that the rule framing authority has not framed the Uttar Pradesh Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 (hereinafter referred to as the Rules, 2001) in the manner as are being read by the respondents. The relevant paragraph-6, 7 and 8 of the said judgments are reproduced 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.
7. Respondents have not disputed the existence of all the said three conditions but their further presumption is that the Rules also contemplate continuous service throughout from the date of initial engagement till the date of commencement of the Rules and only then a person appointed on daily wage basis would be entitled for regularization. It is also the stand of the respondents, which is evident from para-20 of the counter affidavit, which reads as under :
"20. That the contents of para 23 of the writ petition is not correct and denied. As stated the petitioner is continuously working relates to, the working of a daily wager without any break as there is no break mentioned in the regularization rules. The petitioner or a daily wager has to work through out year except on the national holiday."
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."
Learned counsel for the petitioner has further invited attention of this Court towards the stand taken by the State Government. It is contended before the Court in the aforesaid case that the employee was not working continuously, therefore, he was not entitled for regularization. He has submitted that the case of the petitioner is at par that the case of Janardan Yadav (supra) and, therefore, direction may be issued to the respondent No.1 to take a decision in the case of the petitioner.
On the other hand, Sri P.C. Rai, learned counsel has submitted that as per para-6 of the counter affidavit, it is evident that the petitioner had worked since 2004, therefore, he is not entitled for regularization. He has further submitted that the petitioner is not entitled for regularization for the reason that he has not worked continuously and there is no infirmity or illegality in the impugned order.
I have considered the arguments of both the parties.
The stand taken by the respondents is not sustainable for the reason that the impugned order passed by the authority concerned indicates that the petitioner was working prior to 29.6.1991 till 2001 as daily wage employee though he was not working continuously. Therefore, the stand taken in the counter affidavit is contrary to the record which is not sustainable. So far as other argument concerned that the petitioner has not worked continuously and, therefore, he is not entitled for regularization, is also not sustainable for the reason that the said point has been considered in the case of Janardan Yadav (supra).
In view of the aforesaid facts, the impugned order dated 2.3.2012 contained in Annexure No.1 to the writ petition is quashed. The O.P. No.1 is directed to take a fresh decision in view of the observations made above keeping in view the judgment in the case of Janardan Yadav (supra) within six weeks from the date of production of a certified copy of this order by a reasoned and speaking order.
With the aforesaid directions, the petition is disposed of.
Order Date :- 20.1.2023
Rajneesh JR-PS)
