Balram Yadav vs D.J. Maharajganj And Another
2023 Latest Caselaw 26732 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC:189645
 
Court No. - 10
 

 
Case :- WRIT - A No. - 36716 of 1998
 

 
Petitioner :- Balram Yadav
 
Respondent :- D.J. Maharajganj And Another
 
Counsel for Petitioner :- Mahendra Pratap,Akhileshwari Dubey,M.K. Dubey,P.K. Upadhyay,S.M. Yadav,V.K. Dubey
 
Counsel for Respondent :- C.S.C.,Pooja Agarwal,Samir Sharma
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Shri Pankaj Upadhyay along with Shri Vipul Kumar Dubey, learned counsel for the petitioner, Ms. Pooja Aarwal, learned counsel for the respondents and perused the record.

2. The petitioner was appointed as a Class IV employee on Ad-hoc basis on 01.12.1999 in District Judgeship of Maharajganj. Reference to the select-cum-appointment list of year 1991 has been made. The said list shows that pursuant to the written examination dated 20.01.1991 followed by interview dated 11.03.1991, 46 candidates were declared as successful and were appointed in Ad-hoc capacity. The name of the petitioner finds mention at serial No. 35 of the said list with a remark of back-ward class against his name.

3. It is contended that the petitioner was issued a letter of appointment by the District Judge concerned on 12.04.1991, whereby he was appointed as Farrash on Ad-hoc basis on a fixed pay of Rs. 780/- per month w.e.f. 12.04.1991 with a recital that his appointment, being purely temporary in nature, is liable to be terminated any time without notice. Further case of the petitioner is that another order was issued by the District Judge, Maharajganj mentioning that the appointment of various persons including the petitioner would be treated as effective w.e.f. 01.05.1991.

4. It is contended that after about four years, the petitioner moved an application before the Registrar General of this Court on 28.03.1995 seeking regularization of his services. However, while no order was passed on the said application on the Administrative side, in the meantime, learned District Judge, Maharajganj, by an order dated 10.07.1998 terminated the services of the petitioners along with two other persons, while referring to an incident when water stood logged up into the rest room of Additional District Judge for the reason that Assistant Nazir, namely, Rajesh Yadav being on leave, another Assistant Nazir, namely, Kameshwar Thakur remained negligent and, therefore, Kameshwar Thakur was suspended. The said order dated 10.07.1998 is under challenge in the present writ petition along with another order dated 04.08.1998, whereby the petitioner was reappointed on the same post with a clear recital that his seniority would remain intact. The subsequent order has been challenged to the extent it is against the petitioner and it is contended that the only thing which goes against the petitioner in order dated 04.08.1998 is that he has been given fresh/reappointment.

5. The present writ petition has been filed challenging the aforesaid two orders with a further prayer that services of the petitioner be regularized.

6. Learned counsel for the petitioner has placed reliance upon Uttar Pradesh Regularization of Daily Wages Appointments on Group D Posts Rules, 2001 (herein-after referred to as "Rules of 2001") and while referring to Rule 4 of the said Rules, it has been argued that a daily wager directly appointed before 29.06.1991 and continuing in service on the date when the Rules of 2001 came into force, would be entitled for regularization his services. The submission is that in 2001, the petitioner was continuing in service at the strength of the interim order dated 30.11.1998 passed in the present writ petition.

7. Learned counsel for the petitioner further submits that during the pendency of the writ petition, two persons, namely, Ravindra Nath Dubey and Matiram Yadav, whose names were shown at serial Nos. 33 and 34 in the list of 1991, have been regularized and, therefore, the petitioner is being discriminated. Learned counsel for the petitioner has also placed reliance upon the judgements of Apex Court in the case of Sheo Narain Nagar and others vs State of U.P. and others, reported in 2018 (13) SCC 432 and Rajnish Kumar Mishra and others vs State of U.P. and others reported in 2019 (17) SCC 648 and submits that the Apex Court, under identical circumstances, has granted relief to the concerned appellants before the Apex Court after dealing with the regularization Rules of 2001 and cut off date as well as working of the concerned appellants in the establishment.

8. Per contra, Ms. Pooja Agrawal, learned counsel, by referring to the counter affidavit, has argued that there were only 23 vacancies of Class IV in the District Judgeship of Maharajganj and 5 additional posts were created, making the vacancy as 29. It is further contended that the select list relied upon by the petitioner discloses a consolidated list, in which only 29 persons were found to be appointed as against 29 vacant posts and the persons, whose names were mentioned from serial No. 30 onwards, were put in the waiting list and the petitioner being a candidate included in the waiting list and beyond the sanctioned strength, is not entitled either to continue in service or for regularization. As regards the case of Ravindra Nath Dubey and Matiram Yadav, it has been argued that Ravindra Nath Dubey was given appointment pursuant to the order dated 17.07.2013 passed in Writ A No. 1428 of 2004 under the peculiar facts and circumstances and, therefore, no parity can be claimed. She further submits that the learned Administrative Judge, Maharajganj, while deciding the claim of Ravindra Nath Dubey by order dated 19.12.2015, has taken note of the situation that Ravindra Nath Dubey participated in the fresh selection held in the year 1992 and, therefore, the petitioner cannot claim parity with him. As regards Matiram Yadav, whose services have also been regularized, it is contended that he belonged to backward class and since he was above in the order of merit and seniority in comparison to the petitioner, he was given appointment and, hence, the petitioner being below in the select list, cannot claim any relief. Ms. Pooja Agarwal, learned counsel has relied upon the following authorities in support of her submissions:

(i) Vibhuti Shankar Pandey vs State of Madhya Pradesh and others, reported in 2023 (3) SCC 639

(ii) Bhawani Prasad Sahu and others vs State of U.P. Through Principal Secretary,P.W.D. Lucknow and others, reported in 2023 (5) All LJ 248.

9. While placing reliance upon the aforesaid authorities, it has been argued that no appointment beyond the sanctioned strength can be allowed and the petitioner cannot get any relief in view of the judgment of Supreme Court in the case of Secretary, State of Karnataka and others vs Umadevi and others, reported in 2006 (4) SCC 1.

10. Having heard the learned counsel for the parties, I find that the order dated 10.07.1998 terminating the services of the petitioner is confined to the alleged negligence of one Assistant Nazir, namely, Kameshwar Thakur, who was suspended by the same order, whereas the petitioner was terminated without assigning any role to him in the alleged incident of water logging. Insofar as second order impugned dated 04.08.1998 is concerned, though the petitioner is shown to have been reappointed, his seniority was kept intact by the District Judge. By the time, the said order was passed on 04.08.1998, no interim order was passed in the present case. Therefore, it cannot be said that the petitioner's continuity in service is to be considered only in pursuance or at the strength of interim order dated 30.11.1998 passed in the present writ petition. The only little break, if at all can be treated, is in between 10.07.1998 and 04.08.1998, i.e. 24 days and once the District Judge maintained the seniority of the petitioner, despite mentioning that he is offering reappointment to him, for the purposes of claim for regularization of the petitioner, the said little break of 24 days would not adversely affect the cliam subject to other aspects of the matter.

11. Insofar as the argument of Ms. Pooja Agarwal that the petitioner's name was included in the waiting list in view of 29 vacancies available, I find that the said argument has been developed by way of counter affidavit only and there is no such description either in any of the two orders impugned or in the select list or even in the appointment letter that the petitioner was included in the waiting list. In any case, if the argument of Ms. Pooja Agarwal is accepted in relation to the sanctioned strength, after perusing the order passed in the case of Ravindra Nath Dubey, who was also included in the waiting list as per the respondents, I find that the learned District Judge, Maharajganj in the year 2015, apart from discussing other aspects of the matter of Ravindra Nath Dubey, also took note of the report of the District Judge that against 46 sanctioned Class IV posts in the District Judgeship, Maharajganj, 40 persons were working and 6 posts in the said cadre were lying vacant. Learned Administrative Judge in the order dated 19.12.2015 also observed that Ravindra Nath Dubey had been working in the Maharajganj Judgeship for the last more than 22 years on a meagre sum of Rs. 785/- in these hard economic days and he is now 50 years of age having two sons and one unmarried daughter, who are studying and has also to bear the liability of his brothers' widow. The order dated 19.12.2015 was passed in the case of Ravindra Nath Dubey keeping in view the overall facts and circumstances and the District Judge was directed to consider his case and appoint him against one of six vacant posts of Class IV on regular pay scale.

12. The Court records that any defence taken in the counter affidavit, which otherwise is not reflected from perusal of orders impugned and the documents by which the petitioner was appointed i.e. select list or letter of appointment or even the letter of re-appointment or another list directing taking effect of the appointment w.e.f. 01.05.1991, I find that the stand taken in the counter affidavit regarding waiting list is hit by judgement of Apex Court in the case of Mohinder Singh Gill and others vs Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851 as the respondents cannot improve their case on the basis of affidavits only.

13. Even assuming without admitting that the name of the petitioner was included in the waiting list and a consolidated select list prepared in 1991 though does not mention this, I find that almost thirty two years have passed when the petitioner was appointed in the year 1991. Even if, interim order granted by this Court in 1998, is ignored for the purposes of considering the claim for regularization of the services of the petitioner, the Court does not find anything, by which the petitioner's claim in the light of the Rules of 2001 can be ignored, moreso, when identically placed persons, who were also included in the list after serial No. 29 onwards, have already been regularized during the pendency of writ petition pursuant to the orders issued at the level of District Judge as well as learned Administrative Judge of this Court. The sanctioned strength and vacancies may vary from time to time, but considering the report of the District Judge submitted before the learned Administrative Judge in the year 2015, whereby 46 sanctioned posts and six vacancies were noted, in view of the direction of learned Administrative Judge to offer appointment to Ravindra Nath Dubey against one of six vacant posts, the Court finds from overall circumstances that the petitioner is also entitled for equal treatment.

14. The submission of Ms. Pooja Agarwal regarding Matiram Yadav, though is contrary to annexure No. 4 to the writ petition, which is dated 01.05.1991, even if it is accepted that Matiram Yadav was senior to the petitioner as per initial select list, since the petitioner also belongs to the backward class and vacancies against the sanctioned posts are still available and the petitioner's case is found to be not inferior to the claim of Ravindra Nath Dubey or Matiram Yadav, the alleged seniority of Matiram Yadav would not defeat the petitioner's claim for regularization particularly, when this Court is not dealing with the case of interse seniority in between the persons described in the writ petition or otherwise.

15. In view of the above discussion, the orders terminating the services of the petitioner are found to be unsustainable.

16. The writ petition succeeds and is, accordingly, allowed.

17. The orders impugned dated 10.07.1998 and 04.08.1998 passed by District Judge, Maharajganj are hereby quashed.

18. The petitioner is already continuing in service and is getting a consolidated amount.

19. A writ of Mandamus is issued to the District Judge, Maharajganj to forthwith regularize the services of the petitioner in accordance with the Rules of 2001 maintaining his seniority as already directed under the order impugned dated 04.08.1998 and quashing of the said order is to be understood only to the extent it is against the petitioner i.e. "reappointment".

20. The break of 24 days in service as described herein-above shall not be treated as a break and the same would not affect the continuity in service of the petitioner for the purposes of regularization.

21. The petitioner shall be entitled for all consequential and financial benefits.

Order Date :- 03.10.2023

Sazia