Ms Monica Yadav @ Monika Yadav And ... vs State Of U.P Thru. Prin. Secy. ...
2023 Latest Caselaw 25739 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:61000
 
Court No. - 20
 

 
Case :- WRIT - A No. - 7024 of 2023
 

 
Petitioner :- Ms Monica Yadav @ Monika Yadav And Another
 
Respondent :- State Of U.P Thru. Prin. Secy. Deptt. Law, Civil Secrt. Lko. And 2 Others
 
Counsel for Petitioner :- Parimal Bhatt,Abhinav Trivedi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.

1. Heard Mr. Abhinav N. Trivedi, learned counsel for petitioners and Mr. J.N. Mathur, Senior Advocate assisted by Ms. Aakansha Dubey, learned Additional Chief Standing Counsel for opposite parties.

2. Petition has been filed challenging Office Memorandum dated 22.08.2023 so far as it pertains to cancellation/modification of office order no. 357 dated 06.07.2015 setting aside retrospective regularisation of petitioners. Further prayer for a direction to opposite parties to expedite finalization of seniority list of Computer Assistants considering date of birth as a criteria of seniority as held by Hon?ble the Supreme Court in D.P. Das v. Union of India and others, reported in (2011) 8 SCC 115 and for consideration of petitioners' for promotion/adhoc promotion to next higher post has also been made.

3. It has been submitted that petitioners were engaged on the post of Routine Grade Clerks/Computer Assistants in office of Advocate General in years 2005/2006 initially on contractual basis and subsequently as temporary/adhoc employees. The services of petitioners were thereafter regularised by means office order dated 06.07.2015 granting retrospective regularisation to petitioners with effect from date of initial engagement in service. Aforesaid and consequential orders were thereafter challenged in WRIT - A No. - 10124 of 2016 (Smt. Mithlesh Kumari Tiwari and others v. State of U.P. and others) in which interim order was passed and subsequently the said petition along with other connected matters were disposed of vide order dated 28.04.2022 indicating expectation of the Court for settlement of dispute by amicable means in view of fact that petitioner-employees who are before the Court are also a part of the extended family of the High Court. Liberty was granted to petitioners to approach this Court by means of fresh petition in case they were aggrieved by outcome of deliberation and it was also directed that interim orders passed during pendency of writ petitions would not be pressed till a decision with regard to settlement was taken.

4. It is submitted that it is in pursuance of said order that impugned order has been passed by Principal Secretary, Department of Law, Government of U.P. although the initial order of Regularisation of petitioners was passed by the constitutional authority which is the Advocate General U.P. It has also been submitted that orders pertaining to regularisation of petitioners were passed in year 2015, which was given effect to whereby petitioners have acquired a vested right in pursuance of said orders although the said vested right has not been considered in its proper perspective in impugned order. Learned counsel has also submitted that a tentative seniority list with regard to post of Computer Assistants was also published by opposite party in year 2022 to which objections were invited and filed but no final decision thereupon has been taken and therefore direction may be issued to opposite parties for early finalization of the seniority list.

5. It has been submitted that admittedly original records pertaining to merit list regarding engagement of petitioners in service is not available with opposite parties and therefore in such circumstances, it is only the date of birth of an employee which is required to be taken into account while finalizing seniority list as has been held in D.P. Das(supra).

6. Learned counsel for opposite parties on the other hand while refuting the submissions advanced by learned counsel for petitioners has submitted that interim order dated 19.04.2016 passed by a coordinate Bench of this Court in WRIT - A No. - 10124 of 2016 is self-explanatory and clearly indicates the fact that regularization of an employee can be done only prospectively and not retrospective particularly when Service Rules or Notifications or Orders pertaining to such regularization do not indicate any such provision for retrospective regularization. It is submitted that in present case, there is no rule or provision or notification whereby retrospective regularization could have been given and therefore the order has been rightly passed only modifying the regularization orders to the extent of depriving petitioners with regard to retrospective regularization while continuing their regularization with prospective effect. Learned counsel has also adverted to judgment of Hon'ble the Supreme Court in Secretary, State of Karnataka & others v. Umadevi(3) and others, reported in (2006) 4 SCC 1 to submit that benefit of regularization can be granted only in accordance with Rules and in case there is no such provision, mere implementation of retrospective regularization orders would be of no consequence since there cannot be any estoppel against law.

7. Learned counsel for opposite parties on basis of instructions submits that he does not wish to file any counter affidavit and that the dispute may be decided at the admission stage itself.

8. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident that petitioners were initially engaged in office of Advocate General U.P. in the High Court on contractual and thereafter on ad hoc basis in years 2005/2006 whereafter by means of various orders passed in May and July, 2015, they were granted regularization with effect from 23.11.2006 and subsequently vide order dated 06.07.2015 the earlier orders were modified and benefits of dearness allowance and other allowances were also granted with effect from 23.11.2006, which was challenged as indicated herein above. From interim order dated 19.04.2016 passed in aforesaid writ petition, it is quite evident that a prima facie finding has been recorded by a coordinate Bench of this Court that such retrospective regularization could not have been granted dehors the Service Rules and orders applicable upon petitioners.

9. Learned counsel for petitioners has been unable to indicate any provision of law, Service Rules or Notifications whereby such retrospective regularization could have been directed. On the contrary Hon'ble the Supreme Court in Secretary, State of Karnataka v. Uma Devi (Supra) has clearly deprecated such a practice of retrospective regularization with a clear direction that regularization can be done only prospectively and not retrospectively while making a distinction between irregular and illegal appointments.

10. In the present case, it is quite evident that orders pertaining to retrospective regularization has been passed without indicating any provision of law for grant of such benefits. The impugned order has also adverted to aforesaid fact that there was no provision for grant of such retrospective regularization. The order also indicates a humanitarian approach having been taken by State Government since only retrospective regularization pertaining to petitioners has been interfered with while issuing a direction that financial benefits already provided to petitioners would not be withdrawn or recovered.

11. In the considered opinion of this Court, no exception can be taken to the reasoning indicated in impugned order with regard to withdrawal of retrospective regularization of petitioners.

12. So far as submission of learned counsel for petitioners is concerned regarding early finalization of seniority list, learned counsel for opposite parties on the basis of instructions submits that such an exercise is already underway and seniority list pertaining to Computer Assistants in the office of Advocate General U.P. will be finalized shortly and promotion in consequence thereof would also be made.

13. In view of aforesaid, a direction in the nature Mandamus is issued to opposite parties to finalize seniority list of Computer Assistants in the office of Advocate General U.P. at the earliest with consequential promotion also being made in accordance with law.

14. Resultantly, the writ petition is partly allowed to aforesaid extent. There shall be no order as to costs.

Order Date :- 21.9.2023

kvg/-