Dinesh Chandra vs Chief Election Officer, Uttar ...
2023 Latest Caselaw 17833 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:142491-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 444 of 2023
 

 
Appellant :- Dinesh Chandra
 
Respondent :- Chief Election Officer, Uttar Pradesh, Vikas Bhavan And 2 Others
 
Counsel for Appellant :- Sanjeev Singh,Madhavendra Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Anish Kumar Gupta,J.

1. Heard learned counsel for the parties and perused the record.

2. This intra court appeal is directed against the order of the learned Single Judge dismissing the writ petition holding that no illegality can be found in the order dated 26.02.2010 for rejection of claim of the writ petitioner for regularization to the post of Peon. After perusal of the record pertaining to regularization order dated 24.07.2019 passed by the District Election Officer, Azamgarh, it was observed that the order dated 24.07.2009 was a result of concealment of material fact and being an illegal order and the same cannot be sustained.

3. The submission of the learned counsel for the appellant is that the contractual services of the appellant were regularized vide order dated 24.07.2009 passed by the competent authority, namely the District Magistrate / District Election Officer, Azamgarh. However, the said order has been recalled vide order dated 10.11.2009 referring to a wrong rule namely the Group 'D' Employees Service Rules, 1985. The submission is that there was no requirement of advertisement of vacancy of "Group D" post for regularization and the reasoning given in the order impugned dated 10.11.2009 that the vacancy was required to be advertised in accordance with the recruitment Rules, 1985, for regularization / engagement of a contractual employee was a result of misreading of the Rules. The submission is that an order, which is based on wrong appreciation of facts by applying a wrong provision of law, cannot be sustained.

4. The further submission is that with the passing of the order dated 26.02.2010 even the contractual engagement of the petitioner has been brought to an end and the petitioner has not been allowed to continue on the post of peon, on which he was working since 31.07.1987. The contention is that removal of a contractual employee after rendering long period of service, was an illegal act on the part of the respondent. With these submissions, it is argued by the learned counsel for the appellant that a direction in the nature of mandamus may be issued for consideration of claim of the writ petitioner for regularization in accordance with the Regularization Rules namely the Uttar Pradesh Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in a Government Department on Group 'C' or Group 'D' Post (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016, promulgated on 12.09.2016, as the said Rule covers regularization of all contractual employee working on Group-'C' of Group-'D' post in various establishments of the government departments.

5. Considering the said submissions of the learned counsel for the appellant, we are required to note that on the date of regularization of the appellant vide order dated 24.07.2009 admittedly, the claim of the petitioner was not covered by the Regularization Rules, 2001, in vogue. In the said Rule, the regularization claim of such contractual employees, who were engaged or on prior to 29.06.1991 and were working as on 31.12.2001, could have been considered. As the writ petitioner was engaged on contractual basis after 29.06.1991, i.e the cut off date in the Regularization Rules, 2001, his contractual engagement could not have been regularized. There was no other rule covering the claim of the writ petitioner for regularization on the date of passing of the order dated 24.07.2009. The appointment of the writ petitioner on a vacant post of peon on temporary basis by the order dated 24.07.2009 was an illegal act on the part of the competent authority. No infirmity, therefore, can be found in the order dated 10.11.2009, whereby while cancelling the order dated 24.07.2009, the temporary appointment of the writ petitioner on a vacant post has been set aside reference to the Appointment Rules, 1985 for "Group-D" employees in the order dated 10.11.2009 is found to be justified, inasmuch, as the opinion drawn by the competent authority that the temporary appointment on a vacant post could have been made after advertisement of vacancy, is in conformity with the recruitment rules.

6. As noted above, the writ petitioner had no claim for regularization as on 24.07.2009 being outside the purview of the Regularization Rules-2001, the temporary appointment on vacant post could only be granted by adhering to the provisions provided in Group-'D' Employees Service rules, 1985.

7. This apart the order dated 26.02.2010, subject matter of challenge before the Writ Court, has been passed after perusal of the record pertaining to the passing of order dated 24.07.2009. It is recorded in the order impugned dated 26.02.2010 that the temporary appointment of the writ petitioner on a vacant post by the order dated 24.07.2009 was made by the In-charge District Magistrate giving reference to a letter dated 23.07.2009, issued from the office of Chief Election Officer. By the letter dated 23.07.2009 the Election Officer, U.P. directed to conduct proceeding for appointment in accordance with Group-D Employees Service Rules, 1985. The reference has been made to the note sheet, which was presented before the In-charge District Magistrate by concealment of the correct facts, leading to the passing of the order dated 24.07.2009 making temporary appointment on a vacant Class-IV post.

8. It is submitted before us that in a challenge to the order dated 10.11.2009 before this Court, Writ A No. 8685 of 2010 had been disposed of vide judgment and order dated 18.02.2010 noticing that the order dated 10.11.2009 had been proceeded in an erroneous assumption of fact and was against the record and, therefore, was set aside. The matter has been remitted back to the respondent no.2 to pass a fresh order in accordance with law. The order dated 26.02.2010 had been passed pursuant to the directions of the Writ Court. It is, thus argued that once the order of revocation dated 10.11.2009, for cancellation of the regularization dated 24.07.2009, had been set aside, the writ petitioner was entitled to continue to the work on the basis of the order dated 24.07.2009, on the vacant post of peon on temporary basis. However, the fact remains that there was no direction of the Writ Court to permit the petitioner to continue to work on temporary basis against the vacant post of class-IV pursuant to the order dated 24.07.2009, rather the direction was to consider to claim of the writ petitioner afresh in accordance with law. Moreover, the writ petitioner has not been allowed to work on the contract basis.

9. Taking note of the above facts, it is evident that the initial appointment of the writ petitioner on temporary basis against a vacant post vide order dated 24.07.2009, was a result of fraud, we, therefore, do not find any good ground to interfere in the order passed by the learned Single Judge.

10. The contention of the learned counsel that the appellant is eligible for consideration for regularization under the Regularization Rules, 2016, as the contractual engagement was abruptly and illegally terminated by the respondents, is found to be without any substance. It is admitted fact of the matter that the writ petitioner is not working even on contractual basis since after 10.11.2009 when his temporary appointment dated 24.07.2009 has been revoked being illegal and as on the date of promulgation of Regularization Rules, 2016 i.e. 12.09.2016, the petitioner was not working on contract basis in a Group-'D' post , he cannot be said to be covered by the Rule- 2(i) of the Regularization Rules, 2016.

11. In view of the above, the appeal is dismissed being devoid of merits.

Order Date :- 18.7.2023

Ashish Pd.