Allahabad High Court
Balistar Singh vs State Of U.P. Thru Prin.Secy. ... on 2 January, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 15557 of 2019
Petitioner :- Balistar Singh
Respondent :- State Of U.P. Thru Prin.Secy. Forest Deptt. Lucknow And Ors.
Counsel for Petitioner :- Shivam Sharma
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. Petitioner has approached this Court challenging the order dated 08.05.2019 whereby his representation in furtherance of order of this Court for regularization on a Class-IV post is again rejected by the department.
3. Earlier also, the representation of the petitioner for regularization was rejected against which he approached this Court by way of Writ Petition No.7914 (s/S) of 2003 which was allowed by this Court by judgment and order dated 29.03.2019. Relevant portion of the said judgment reads as follow:-
"I have heard learned counsel for the parties and perused the record.
It is an admitted fact that petitioner Balastar Singh was appointed as a Daily Wage Employee in the Department prior to 31.12.2001, which is the cut off date indicated in the Rules of 2016.The impugned order itself also indicates that petitioner Balastar Singh was working as such in the Department on 12.09.2016, which is the date on which the Rules of 2016 were implemented. A perusal of the impugned order also indicates that the only reason for disentitling the petitioner for regularisation is that he had not worked continuously as a daily wage employee in the department during the period of his engagement in service. In view of the judgments relied upon by learned counsel for the petitioners, the said fact is no longer res-integra and it has already been held that the only requirement as per the regularisation rules is that the person should have been appointed prior to the cut off date and should have been working as such on the date of implementation of the regularisation rules. The aforesaid judgments also clearly hold that there is no requirement under the regularisation rules for an incumbent to have been working continuously in the department during the period of his service. Although the said judgments pertain to the regularisation rules of 2001 but the same can be taken into account in view of the fact that the Regularisation Rules of 2016 are para-materia with the Regularisation Rules of 2001. So far as the judgment relied upon by learned State Counsel is concerned, a perusal of the same would indicate that the said judgment is distinguishable on account of the fact that the dispute therein pertained to the fact that the writ petitioners of the said petition were not working in the department on the cut off date mentioned in the Regularisation Rules of 2001. On account of the said fact, the said judgment passed in Surendra Singh and another (supra) is inapplicable in the present case.
In view of the admitted position that the petitioner was working in the department prior to the cut off date on daily wage basis and continued as such till the implementation of the Rules of 2016, the writ petition is allowed so far it relates to petitioner Balastar Singh. A writ in the nature of certiorari is issued quashing the impugned order dated 17.06.2017 and a writ in the nature of Mandamus is issued directing opposite part no.3, i.e.Divisional Forest Officer, South Kheri Forest Division, Forest Department, Lakhimpur Kheri to consider the case of petitioner Balastar Singh for regularisation under the Rules of 2016, in terms of the observation made herein above by a reasoned and speaking order, within a period of four weeks from the date a copy of this order is produced before him."
4. The Court found that the petitioner was working in the department from prior to the cut-off date as daily wager and continued till implementation of Rules of 2016. In the said back ground the said writ petition was allowed and the earlier order rejecting his representation was set aside and the department was required to pass fresh speaking order with regard to his regularization. Thereafter, it was not open for the department to raise any new controversy. It was expected to pass a fresh order in accordance with law for regularization. However, again the representation of the petitioner is rejected by the impugned order on the ground that from prior to 31.12.2001 and in the month of June, 2003, petitioner had worked in the schemes of the State Government as a daily wager and therefore, he cannot be regularized as per Rule 2(iii) of The Uttar Pradesh 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) Rule, 2016 (hereinafter referred to as Rules of 2016). Rule 2(iii) of the Rules of 2016 reads as follows:-
"2. These rules shall not apply for regularization of:-
(i) ...
(ii) ...
(iii) Person/Persons engaged/employed/deployed on consolidated pay/fixed honoraria in the schemes/projects of State Government or Government of India sponsored programmes;"
5. There is nothing on record including in the counter affidavit to show that the petitioner ever worked on temporary basis in any temporary scheme or on any projects of the State Government. Even otherwise, the allegation is that petitioner had worked in such a scheme prior to 31.12.2001 and thereafter only for a month, i.e., in June, 2003. Even presuming the allegation to be correct, merely because petitioner had worked for one month in June, 2003, in any such scheme, the same would not make him dis-entitled for regularization as he has worked for the entire period, as required under the Rules of 2016, for regularization. The said aspect of the matter is nowhere disputed either in the counter affidavit or in the impugned order. In fact in the counter affidavit, the State has tried to take a fresh ground which was not even taken up in the impugned order. Such grounds cannot be taken up by a counter affidavit, that too in a second petition. No such objections were taken with regard to regularization of the petitioner in the first writ petition, when this Court gave a categorical finding that petitioner is covered by the Rules of 2016, as he has worked from before the cut off date till the date the regularization rules came into force.
6. In view of the aforesaid discussion, the impugned order dated 08.05.2019 cannot stand and is set aside.
7. The claim of the petitioner is affirmed.
8. Let appropriate orders be passed by respondent no.3 Divisional Forest Officer, South Kheri Forest Division, Lakhimpur Kheri within a period of two months from the date of production of a certified copy of this order before him and consequential benefits provided to the petitioner.
9. With the aforesaid, the writ petition is allowed.
Order Date :- 2.1.2023
Arti/-
(Vivek Chaudhary,J.)
