Mohammad Sajid Ali vs State Of U.P. Thru Prin.Secy. ...
2023 Latest Caselaw 8144 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- WRIT - A No. - 20106 of 2019
 

 
Petitioner :- Mohammad Sajid Ali
 
Respondent :- State Of U.P. Thru Prin.Secy. Medical Health And Family And Ors.
 
Counsel for Petitioner :- Vijay Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present petition under Article 226 of the Constitution of India has been filed impugning the order dated 16.4.2019 passed by the Director General, Family Welfare, Family Welfare Directorate, Lucknow, whereby the petitioner's claim for regularization from the date his juniors and subsequently engaged as daily wager on the post of Driver has been declined.

2. The petitioner was initially engaged as daily wager on the post of Mechanic-cum-Driver on 17.4.1989 in a workshop run by the Department of Medical and Health Services. In the month of October, 1989, other persons, namely, Prithvi Raj Tewari and Virendra Kumar Trivedi were engaged as daily wager on the post of Driver by the Department of Medical and Health Services. In the year 1990, the services of the all daily wagers working in the Medical and Health Service Department were dispensed with.

3. Being aggrieved by the said order, the petitioner filed Writ Petition No.12833(SS) of 1990 and in pursuance to the interim order dated 13.12.1990 passed by this Court, the petitioner was re-engaged and he continued as such.

4. During the pendency of the said writ petition, the claim of Prithvi Raj Tewari and Virendra Kumar Trivedi for regularization was considered and they were regularized w.e.f. 27.10.1994 and 29.10.1994 respectively. However, the petitioner was not regularized. In the regularization orders dated 27.10.1994 and 29.10.1994 in respect of Prithvi Raj Tewari and Virendra Kumar Trivedi, it was mentioned that the said persons would withdraw their writ petition from the High Court within a period of fifteen days from the date of their regularization order.

5. As the persons subsequently engaged to the petitioner as daily wager, were regularized and the petitioner?s claim was not considered, the petitioner made a representation and, thereafter, the services of the petitioner were regularized vide order dated 28.8.2006. In regularization order dated 28.8.2006 regularizing the services of the petitioner on the post of Driver, this condition was mentioned that he would file an application within fifteen days from the date of the order dated 28.8.2006 to withdraw Writ Petition No.12833(SS) of 1990 and the writ petition stood withdrawn thereafter.

6. The petitioner filed second Writ Petition No.1144 (SS) of 2009 before this Court with the prayer that since the opposite parties had regularized the services of the persons, who were subsequently engaged as daily wager than the petitioner, his regularization should date back from the date when the junior/subsequently engaged persons got regularized. A coordinate Bench of this Court vide judgment and order dated 13.11.2018 disposed of the said writ petition with direction to the opposite parties to consider the case of the petitioner for regularization w.e.f. 27.10.1994 when the persons engaged after the petitioner were regularized. Such consideration was to be given within a period of three months from the date of production of a certified copy of the said order.

7. Despite the aforesaid order when the services of the petitioner were not regularized w.e.f. 27.10.1994, the petitioner filed Contempt Petition No.509 (C) of 2019. In the said contempt petition, notices were issued and, thereafter, the opposite parties passed the impugned order, whereby the request of the petitioner for regularization w.e.f. 27.10.1994 has been declined on the ground that the petitioner has been regularized w.e.f. 28.8.2006 in pursuance to the order passed in Writ Petition No.1144(SS) of 2009 and there is no provision for making his regularization with retrospective effect.

8. Sri Vijay Kumar Srivastava, learned counsel for the petitioner submits that there was specific direction by this Court vide judgment and order dated 13.11.2018 passed in Writ Petition No.1144 (SS) of 2009 to consider the case of the petitioner for regularization w.e.f. 27.10.1994. The said judgement and order passed by the learned Single Judge has attained finality as the same has not been challenged in appeal. The letter and spirit of the judgement and order dated 13.11.2018 is to regularize the services of the petitioner with effect from the date when the persons subsequently engaged as daily wager were regularized. There is no dispute that Prithvi Raj Tewari and Virendra Kumar Trivedi were subsequently engaged than the petitioner and whose services were regularized w.e.f. 27.10.1994. It is, therefore, submitted that the impugned order passed by the opposite party no.2 is against the letter and spirit of the judgement and order dated 13.11.2018 and the petitioner?s services ought to have been regularized w.e.f. 27.10.1994.

9. On the other hand, Sri Shailendra Kumar Singh, learned Chief Standing Counsel, assisted by Sri Sandeep Sharma, learned Standing Counsel, has submitted that the petitioner?s case is different than the two persons i.e. Prithvi Raj Tewari and Virendra Kumar Trivedi. The petitioner was appointed on the post of Mechanic-cum-Driver in the workshop as daily wager, whereas Prithvi Raj Tewari and Virendra Kumar Trivedi were appointed as Driver only at the headquarter. It is, therefore, submitted that the petitioner and the two persons named above were not similarly situated. The regularization cannot date back and it has to be given effect from the date of the order. Claiming parity with the Prithvi Raj Tewari and Virendra Kumar Trivedi is totally incorrect as the petitioner and the two persons, i.e. Prithvi Raj Tewari and Virendra Kumar Trivedi were not appointed for the same post as daily wager.

10. I have considered the submissions advanced by the learned counsel for the parties and perused the record.

11. A coordinate Bench of this Court vide judgement and order dated 13.11.2018 passed in Writ Petition No.1144(SS) of 2009 specifically directed the opposite parties to consider the case of the petitioner for regularization w.e.f. 27.10.1994 as this Court found that Prithvi Raj Tewari and Virendra Kumar Trivedi were appointed on the post of Driver in the month of October, 1989, whereas the petitioner was appointed in the month of April, 1989. Thus, it is clear that Prithvi Raj Tewari and Virendra Kumar Trivedi were subsequently appointed than the petitioner. The regularization order of the petitioner does not say that the petitioner was appointed on the post of Mechanic-cum-Driver. Further, the services of Prithvi Raj Tewari and Virendra Kumar Trivedi were also dispensed with like the petitioner. They also filed writ petitions as like the petitioner and there were interim orders in their favour. Thereafter, services of Prithvi Raj Tewari and Virendra Kumar Trivedi came to be regularized w.e.f. 27.10.1994, wheres the services of the petitioner were regularized w.e.f. 28.8.2006.

12. The artificial ground taken by the opposite parties for regularizing the services of the petitioner w.e.f. 28.8.2006 that the petitioner was appointed on the post of Mechanic-cum-Driver, does not appear to be reasonable inasmuch as in the regularization order, nothing is mentioned that the petitioner was appointed on the post of Mechanic-cum-Driver. There may be some difference in the working of the petitioner and Prithvi Raj Tewari and Virendra Kumar Trivedi, but when it is not denied that Prithvi Raj Tewari and Virendra Kumar Trivedi were subsequently engaged than the petitioner, the order impugned is not in accordance with the judgement and order passed by a coordinate Bench of this Court dated 13.11.2018 in Writ Petition No.1144(SS) of 2009, therefore, the same is liable to be quashed.

13. Thus, the present writ petition is allowed and the impugned order dated 16.4.2019 passed by the Director General, Family Welfare, Family Welfare Directorate, Lucknow is hereby quashed. Opposite parties are directed to regularize the services of the petitioner w.e.f 27.10.1994 i.e. the date when juniors to the petitioner, Prithvi Raj Tewari and Virendra Kumar Trivedi were regularized with all consequential benefits.

Order Date :- 21.3.2023

Rao/-