Allahabad High Court
Ram Bharat Yadav vs State Of U.P.Thru ... on 27 January, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 30459 of 2019
Petitioner :- Ram Bharat Yadav
Respondent :- State Of U.P.Thru Prin.Secy.Forest Deptt. Lko And Ors.
Counsel for Petitioner :- Shailendra Kumar Dubey
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 29.05.2017 passed by the respondent no.3, whereby the claim of the petitioner for regularization is refused on the ground that there was break from the year 1990 to 1999 and from 1999 to 2002.
Learned counsel for the petitioner submits that the said gap is covered by the order of the Labour Court whereby a reference was made by the State Government as to whether the service of the petitioner by order dated 01.06.1990 is valid or not. The said reference was decided in favour of the petitioner by an Award of the Labour Court dated 12.11.1998 and it was held that the petitioner was wrongly removed and he shall be restored back with all the consequential benefits. In pursuance of the said award the petitioner was reinstated in October, 2002. Thus, the same cannot be treated to be a break in the service. The next ground of refusal is that the petitioner was not working in the month of September, 2016 when the U.P. Regularization of Persons Working On Daily Wages or On Work Charge or On Contract in Government Departments on Group 'C' and Group 'D' Posts (Outside The Purview of the Uttar Pradesh Public Service Commission), Rules 2016 (hereinafter referred to as 'Regularization Rules, 2016'), came into force. Admittedly, the petitioner is still working as is admitted in Paragraph 10 of the counter affidavit. Thus, he has been working since 1986 till now. So far as the artificial break in the working of the petitioner is concerned, learned counsel for petitioner further submits that the said issue is finally settled by this Court by its judgment in the case of 'Janardan Yadav vs. State of U.P.' reported in [(2008) 1 UPBEC 498], in which this Court has held as follows:
"5. Since the facts are not in dispute and it is also not disputed that the petitioner was engaged on daily wage basis in 1984, i.e., before 29.6.1991 and was also working on the date of commencement of Rules 2001, i.e, on 21.12.2001, thus it is evident that he was entitled to be considered for regularization under the said Rules. 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."
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.
9. In the result, the writ petition succeeds and is allowed. The impugned order 10.9.2004, Annexure-5 to the writ petition, is quashed. The respondents are directed to re-consider the case of the petitioner for regularization in accordance with 2001 Rules and the observations made hereinabove, afresh, and pass appropriate order within three months from the date of production of certified copy of this order."
The said judgment was also followed by another judgment of this Court in the case of 'Sri Ram Yadav vs. State of U.P. and others' reported in [(2008) 2 UPLBEC 1533].
In the aforesaid judgment, the Division Bench of this Court has held that in the cases where a person has worked over a long period of time and is entitled for regularization as per the regularization rules, but for the artificial breaks which may have occurred, he is entitled for regularization ignoring the said artificial breaks. In the present case, the petitioner is working with the respondents-department since the year 1986 till now. Thus, his case is covered by the Regularization Rules, 2016. The artificial breaks, if any, are to be ignored for the same.
Hence, the impugned order dated 29.05.2017, is set aside.
The respondents are directed to treat the petitioner covered with the Regularization Rules, 2016 and pass appropriate orders with regard to his regularization within a period of two months from the date of production of a certified copy of this order.
The writ petition is allowed.
(Vivek Chaudhary,J.)
Order Date :- 27.1.2023
Arjun/-
