Thakur Prasad vs State Of U.P. Thru ...
2023 Latest Caselaw 2289 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 
Case :- WRIT - A No. - 3704 of 2015
 
Petitioner :- Thakur Prasad
 
Respondent :- State Of U.P. Thru Prin.Secy.Forest Deptt.Civil Sectt.And Ors.
 
Counsel for Petitioner :- Anoop Prakash Awasthi,Abhinav Kumar,Arvind Kumar,Pratul Kumar Srivastava,Santosh Kumar Yadav,Sushma Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Brij Raj Singh,J.

1. This writ petition has been filed praying interalia the following reliefs:

"(i) issue writ, order or direction quashing impugned office order dated 09.06.2015 being illegal and arbitrary ;

(ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to continue on the post of Field Assistant and to pay him applicable salary;

(iii) issue writ, order or direction in the nature of mandamus commanding the opposite parties to regularise the petitioner against the post of Field Assistant on which he is serving since 1995 ;"

2. Brief facts of the case are that Petitioner was appointed on the post of Khalasi on daily wage on 01.07.1995 and continued his work with artificial break till 19.12.2022. He was disengaged from service on 20.12.2002. Aggrieved by the said order, the Petitioner filed Writ Petition No.944 (S/S) of 2003 with prayer to regularise him on the post of Field Assistant. The Court passed an interim order on 10.02.2003 and it was directed that in case work is available in the project, then the respondents may allow the petitioner to work on daily wage basis on the post of Field Assistant. The Petitioner was also allowed minimum of the pay scale vide order dated 16.02.2006 passed by this court. In compliance of the said interim order, the petitioner was allowed to work and minimum pay scale was given. Thereafter, the aforesaid writ petition no.944 (S/S) of 2003 was disposed of vide order dated 10.03.2015 and direction was issued to the respondents to regularise the services of the petitioner and further direction was issued that the petitioner would be allowed to continue in service till decision is taken.

3. In pursuance of the directions issued by this Court, the impugned order dated 09.06.2015 has been passed, which is under challenge before this Court.

4. The impugned order indicates that the petitioner has worked for about 20 years with some artificial break. The regularisation of the petitioner has been rejected on the ground that the petitioner had not completed 10 years of service in view of the Government Order. It has been mentioned in the impugned order that the petitioner is not entitled under Uttar Pradesh Regularisation of Daily Wages Appointments on Group ''D' Posts Rules, 2001 because he was appointed in July 1995 whereas the Rules says that the incumbent appointed on or before 29.06.1991 will be considered for regularisation. Learned counsel for the Petitioner has submitted that the impugned order cannot survive in the eyes of law because this Court had directed by way of an interim order wherein it is provided that in case work and post is available, the petitioner would be allowed to work. The respondents had allowed the Petitioner to work, it means that work and post was available otherwise, they would not have allowed. Moreover, interim order was also not mandatory upon the respondents. The Petitioner worked for about 20 years and services of the petitioner should not be disengaged and respondents has committed error while holding that work is not available and petitioner is not entitled for regularisation under the Rules. He has further relied upon the judgment rendered by the Hon'ble Supreme Court reported in 2014 (7) SCC 223, State of Jharkhand and others v. Kamla Prasad, which is a detailed and exhaustive judgment which has been considered in Writ Petition No. 944 of 2003. The relevant para nos. 7 to 12 are quoted as under :

"7. In the case of Kamla Prasad (supra), however, the Hon'ble Supreme Court of India had considered the entitlement to regularisation, also, on the basis of exception carved out in Para 53 of judgement reported in 2006 (4) SCC 1, State of Karnataka Vs. Uma Devi.  The relevant portions (para 30, 30.1, 30.2, 31, 36, 36.1, 36.2, 36.3, 36.4, 37, 38,39,41,42,43,44,46 and 47) from the Kamla Prasad's case (supra), in the present context, are extracted here below:-

"30. Further, the learned senior counsel contends the core questions involved in the case in hand are:

30.1 (i) Whether the services of the respondent- employees should have been considered for regularization by the State Government even though in the first instance they did not obtain selection through the Public Service Commission and on the 2nd occasion they did not participate in the selection process?

30.2. (ii) Whether, they were entitled to claim regularization based only on the fact they had worked for more than 10 years of service continuously with the appellants?

31. He further submits that the High Court, considering the law declared in Umadevi (3) case at para 53 and also keeping in view the justice and good conscious, has granted the relief to the respondent-employees. The same cannot be termed either as erroneous or error in law. Further, it is contended that the Division Bench of the High Court of Jharkhand has rightly rejected the contentions urged by the Advocate General to the effect that the persons who are appointed on ad hoc/temporary basis had an opportunity to get another appointment in regular selection and they failed to participate in the selection process, therefore the same would not be a ground for the appellants to refuse regularization of service of the respondent-employees, even after they have not availed such opportunity. The employer State Government did not choose to dispense with their services though there is no restraint order from the court. In the cases in hand, both the Government of State of Bihar and Jharkhand have continued the service of all the respondent-employees for 10 or more years even after they failed to get appointed to the posts on a regular basis. Therefore, the principle laid down in Umadevi (3) case (supra) would squarely apply in the case in hand in support of the respondent-employees. The submission made by the learned senior counsel on behalf of the appellants that the regularization of the respondent-employees in their service would deprive the other eligible persons from employment is wholly untenable in law as the same would constitute not only discrimination but also deprivation of their livelihood, which is not legally permissible in law. The question is whether the appellants can terminate the services of the present employees who have served for more than 10 to 30 years, thereby rendering injustice to the eligible people. Therefore, in any event, it is doubtful whether the employer, more particularly the State can raise such a plea to deny employment to the employees and whether the law can be interpreted in a manner so as to give all benefits to the wrongdoers. The appointments were given to a large number of engineers by the State Government of Bihar consciously and there is no allegation of unfairness in their appointment which can be said to be tainted or as a result of any nepotism. The error of the State Government of either Bihar or Jharkhand would not justify to throw away the respondent-employees by making them unemployed who have been well-settled in their life since the same would amount to a clear case of discrimination and deprivation of their livelihood. Further, the Division Bench of High Court has rightly held that there is duty cast upon the State Government of Jharkhand to consider the claim of the respondent- employees as one-time regularization of ad-hoc/ temporary employees in their posts.

36. With reference to the above said rival legal contentions, urged on behalf of the parties the following points would arise for consideration in these Civil Appeals :

36. 1. (i) Whether the impugned judgment is correct in holding that the respondents-employees are entitled for the benefit of Umadevi (3) case as they rendered more than 10 years of service in the State Government of Jharkhand without intervention of the court?

36.2. (ii) Whether the impugned judgment passed by the Division Bench of High Court is vitiated on account of erroneous finding or suffers from error in law?

36.3. (iii) Whether the impugned judgment warrants interference by this Court in exercise of power under Article 136 of the Constitution of India on the grounds urged in these appeals?

36.4. (iv) What orders?

Answer to Point Nos. (i) and (ii)

37. These points are answered together as they are inter related with each other.

38. The learned senior counsel appearing on behalf of the appellants argued that there have been repeated findings of the High Court that the respondents have been continued in service voluntarily by the employer for more than 10 years. Correctness of the same is disputed by the learned senior counsel for the appellants by placing reliance upon at least six interim orders passed by the High Court all of which are prior to 10-4-2006; the dates of these orders are as follows:

(i) Order dated 15-12-1996 in Paras Kumar v. State of Bihar.

(ii) Order dated 20-6-1997 in Sardar Pradeep Singh v. State of Bihar.

(iii) Order dated 4-4-2002 in Jawahar Prasad Bhagat v. State of Bihar.

(iv) Order dated 4-4-2002 in Akhilesh Prasad v. State of Bihar.

(v) Order dated 4-4-2002 in Vijay Kumar Sharma v. State of Bihar.

(vi) Order dated 8-1-2003 in CWJC No. 2087 of 2010.

Further, two stay orders have also been passed by the High Court subsequent to 10-4-2006, which are : (1) Order dated 9-9-2010 of the learned single Judge and (2) Order dated 13-9-2011.

39. Further, in Umadevi (3) it has been held by the Constitution Bench of this Court that: (SCC p. 42, para 53).

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, R.N.Nanjundappa and B.N.Nagarajan and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

(emphasis in original)

The learned senior counsel for the appellants placing reliance upon the aforesaid paragraph of the decision submits that the respondents do not fulfil the requirement of 10 years of uninterrupted service which is sine qua non for regularization of the services of the employees in their posts. Hence, the legal principle laid down by this Court in the aforesaid case cannot apply in the present case, therefore, the respondents are not entitled for regularization.

41. The learned senior counsel on behalf of the appellants have failed to show as to how the interim orders upon which he placed strong reliance are extended to the respondents which is not forthcoming except placing reliance upon the decision of this Court in the case of Amrit Lal Berry (supra), without producing any record on behalf of both the State Governments of Bihar and Jharkhand to substantiate the contention that the interim orders obtained by the similarly placed employees in the writ petitions referred to supra were extended to the respondent employees to maintain parity though they have not obtained such interim orders from the High Court. Therefore, the learned senior counsel has failed to prove that the respondents have failed to render continuous services to the appellants at least for ten years without intervention of orders of the court, the findings of fact recorded by the Division Bench of the High Court is based on record, hence the same cannot be termed as erroneous in law. In view of the categorical finding of fact on the relevant contentious issue that the respondent-employees have continued in their service for more than 10 years continuously therefore, the legal principle laid down by this Court in Umadevi (3) case at paragraph 53 squarely applies to the present cases. The Division Bench of the High Court has rightly held that the respondent employees are entitled for the relief, the same cannot be interfered with by this Court.

42. In fact, the Division Bench of the High Court by regularizing the respondent-employees vide its impugned order has upheld the constitutional principle laid down by this Court in the case of Olga Tellis (supra), the relevant para of which reads as under :-

"32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life.

That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages.

The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those

limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P."

(Emphasis laid by this Court)

43. In view of the foregoing reasons which we have assigned in this judgment and in upholding the findings and reasons recorded by the Division Bench of the High Court in the impugned judgment, it cannot be said that the findings and reasons recorded by the High Court in arriving at the conclusions on the contentious issues that arose for its consideration can be termed either as erroneous or error in law.

44. In view of the foregoing reasons, we are inclined to conclude that the High Court was legally correct in extending the benefits of Umadevi (3) case to the respondent employees. Therefore, we answer Point (I) and (ii) in favour of the respondent employees.

46. In view of the legal principles laid down in the aforesaid decisions, we are of the opinion that the decision of the High Court does not fall in either of the categories mentioned above which calls for our interference. The Division Bench of the High Court having regard to the glaring facts that the respondent employees have continuously worked in their posts for more than 29 years discharging permanent nature of duties and they have been paid their salaries and other service benefits out of the budget allocation, no objection was raised by the CAG in this regard and therefore, it is not open for the appellants to contend that the law laid down in Uma Devi(3) case has no application to the fact situation. The action of the appellants in terminating the services of the respondent employees who have rendered continuous service in their posts during pendency of the Letters Patent Appeals was quashed by the High Court after it has felt that the action is not only arbitrary but shocks its conscious and therefore it has rightly exercised its discretionary power and granted the reliefs to the respondent-employees which do not call for our interference. Therefore, we are of the opinion that this Court will not interfere with the opinion of the High Court and on the contrary, we will uphold the decision of the High Court both on factual and legal aspects as the same is legally correct and it has done justice to the respondent-employees."

8. Learned counsel for the respondent State has not been able to dispute that the judgement rendered by the Hon'ble Supreme Court of India in Kamla Prasad's case (supra) is in context of right of an employee to regularisation and therefore is in context of the prayer made in this petition.

9. Considering the totality of facts and circumstances, in context of the relief claimed, learned counsel appearing for the respondent states that claim of the petitioner for regularisation would be considered in context of the Uttar Pradesh Regularization of Daily Wages Appointments on Group-''D' Posts Rules, 2001, as also the judgement rendered by the Hon'ble Supreme Court of India in Kamla Prasad's case (supra), from which relevant portion has been extracted above.

10. In view of the above, this petition is disposed of.

Respondents are directed to consider the claim of petitioner for absorption/regularisation, in terms of the statement given by learned counsel for the respondents.

11. Considering the fact that the petitioner has been allowed to continue in service under order dated 10.2.2003, passed by this Court, it is directed that the petitioner will be allowed to continue in service till decision is taken, in accordance with direction issued above.

12. Decision be taken by the respondents within four months from the date of receipt of a certified copy of this order."

5. Learned counsel for the petitioner submitted that the case of the petitioner for regularisation should be considered in view of the Government Orders dated dated 13.08.2015 and 24.02.2016 filed as RA 1 and 2 to the rejoinder affidavit.

6. On the other hand, Shi Vinod Kumar Singh, learned Additional Chief Standing Counsel appearing for the respondents submitted that petitioner is not entitled for regularisation because he was not engaged prior to 1991. He submitted that the appointment of the petitioner is not made in accordance with rules nor on any substantive post. He has submitted that the orders passed by the authorities is sustainable because the appointment of the petitioner does not fall within the purview of the rules therefore, his services cannot be regularised. He has relied upon Rules 2002 that in view of the aforesaid rule, petitioner is not entitled for further engagement.

7. Learned Standing Counsel for the respondents submitted that the case of the petitioner is not covered under Kamla Prasad (supra) and is not applicable.

8. I have heard the rival contentions of both the parties and perused the record.

9. The coordinate Bench while deciding with the case of the petitioner has considered all aspects of the case and court has also considered the case of Kamla Prasad (Supra).

10. Learned Standing Counsel for the respondents did not dispute the case of Kamla Prasad rather it was admitted that it was applicable. The court while giving direction has directed for absorption/ regularisation in terms of the statement given by learned standing counsel.

11. The fact remains that the petitioner was allowed to work in pursuance of an interim order wherein it was directed that in case work and post is available, the petitioner would be allowed to continue in service. After order of this Court, the petitioner was allowed to work, it means that work was available. His services would have been dispensed with by the answering respondents, but it was not done. It is admitted on record that for 20 years, the petitioner has worked with some artificial break, which is apparent in the impugned order itself. Once 20 years service has been exhausted by the petitioner, then there is no question of disengagement after such a long lapse of time and he was allowed to continue for 20 years though there was directions by this court that he would be allowed to work if the work was available. After 20 years of service, in my opinion, disengaging the petitioner, would be harsh therefore, I direct the respondent no. 6 to re-instate the petitioner in service. After reinstatement of petitioner, his regularisation would be considered in view of Government Orders dated 13.08.2015 and 24.02.2016 respectively within two months. The order dated 09.06.2015 passed by respondents is, hereby, quashed.

12. The writ petition is allowed.

Order Date :- 23.1.2023

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