Allahabad High Court
Madan Gopal Singhal And Anr. vs State Of U.P. Thru Prin.Secy. Labour ... on 1 February, 2024
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:9546
Court No. - 18
Case :- WRIT - A No. - 31477 of 2021
Petitioner :- Madan Gopal Singhal And Anr.
Respondent :- State Of U.P. Thru Prin.Secy. Labour Lucknow And Anr.
Counsel for Petitioner :- Shivam Sharma
Counsel for Respondent :- C.S.C.
Hon'ble Manish Kumar,J.
Heard Sri Shivam Sharma, learned counsel for the petitioner and learned Standing Counsel for the State.
The present writ petition has been preferred challenging the order dated 18.11.2021 by which the claim of the petitioners for regularization on the post of Lecturer in I.T.I. has been rejected.
Learned counsel for the petitioner has submitted that petitioner no. 1 was appointed on 12.01.1987 and petitioner no. 2 was appointed on 17.11.1999 as Lecturer on daily wage basis, after facing the selection Committee and since then, they were continuously functioning on the said post uptil 08.08.2014. It has specifically been mentioned in para 24 of the writ petition with a document in support i.e. Annexure no. 9 which is attendance sheet of the petitioners and thereafter, petitioners were not permitted to continue on the said post.
The petitioners had approached this Court by filing a W.P. No. 4849 (S/S) of 2015 with a prayer to direct the respondents to consider their regularization on the post of Lecturer I.T.I. in the light of the judgment in the case of Smt. Karma Devi v. State of U.P and Ors. [2012 (30) LCD 642] and Ram Naresh v. State of U.P. and Ors. [2013 (31) LCD 1326]. This Court vide its judgment and order dated 24.11.2016 disposed of the writ petition with a direction to the respondents to consider the issue of regularization of Part-time daily wagers and decide the claim of the petitioners in accordance with law.
It is further submitted that in pursuance of the judgment and order dated 24.11.2016 passed by this Court, the respondents had rejected the claim of the petitioners for regularization by order dated 01.03.2017 on the ground that the petitioners were working under a Scheme which is no more in existence. The regularization cannot be made as after the end of the Scheme, no course are available, hence, it is a deemed termination after the end of the Scheme. The petitioners were continuing in service in absence of any interim order.
It is further submitted that against the order dated 01.03.2017, the petitioners had approached this Court by filing W.P. No. 12272 (S/S) of 2017 and the said writ petition was allowed by this Court by its judgment and order dated 04.08.2021 by setting aside the order dated 01.03.2017. The operative portion of the said judgment is quoted hereinbelow:-
"13: In view of the reasons recorded above, the impugned order dated 1.3.2017 is set aside.
14: The writ petition succeeds and is allowed.
15: The respondent No.2 is directed to consider the claim of the petitioners under U.P. 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) Rules, 2016 and pass appropriate reasoned speaking order within a period of six weeks from the date of production of certified copy of this order.
16: It is however made clear that the order passed by the respondent No.2 shall be communicated to the petitioners within a further period of ten days."
It is further submitted that respondent no. 2 had rejected the claim of the petitioners on the ground that the petitioners had worked uptil 09.11.2012 and thereafter neither any work was taken from the petitioners nor any payment was made to them, hence, the case of the petitioners is not covered under the Rules, 2016 as they were not working on the date when these Rules have came into existence on 24.02.2016.
It is further submitted that it is the respondents who had not considered the claim of the petitioners for regularization and for which it is the third writ petition preferred by the petitioners.
It is further submitted that as per the judgment in the case of Secretary, State of Karnataka and Ors. vs. Uma Devi (3) [2006 (4) SCC 1], wherein it has been held by the Hon'ble Apex Court to consider the candidature of the employees, who have rendered long years of service for regularization and if they have served for more than ten years as on 10.04.2006 without protection of any interim order of any Court or Tribunal are entitled to be considered for regularization.
It is further submitted that almost in identical circumstances, one Sri Ram Kumar (though not Lecturer, was a Class-IV employee) had approached this Court by filing Writ A No. 32522 of 2018 (Ram Kumar vs. State of U.P. and Ors.) and this Court had allowed the writ petition by judgment and order dated 15.02.2023 by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Uma Devi (supra), hence, the case of the petitioners are also squarely covered by the case of Uma Devi (supra) as well as the judgment of this Court dated 15.02.2023 passed in the case of Ram Kumar (supra).
On the other hand, learned Standing Counsel has submitted that as per the requirement under the Rules, 2016, the persons who have to be considered for regularization must be working on the date when the Rules have came into existence i.e. 24.02.2016, whereas the petitioners were not working in the Institution since 09.11.2012 and as per the Rules, 2016, their claim has rightly been rejected by the respondent no. 2.
It is further submitted that the judgment in the case of Uma Devi (supra) is not applicable in the case of the petitioners as in the State of U.P., the regularization Rules were initially framed in the year 1989 and amended in the year 2001 and lastly amendment was made in the year 2016 and apparently in the case of Uma Devi (supra) in Karnataka it has been framed in the year 2016 for the first time.
It is further submitted that the judgment in the case of Ram Kumar (supra) is not applicable in the case of the present petitioners as in the case of Ram Kumar, the selection Committee has itself recommended the case of the petitioner for regularization whereas in the present case, the case of the petitioners was never recommended for regularization by the Selection Committee.
After hearing learned counsel for the parties, going through the record of the case and the judgments cited by learned counsel for the petitioners, it is found that the petitioner no. 1 was appointed on 12.01.1987 and petitioner no. 2 was appointed on 17.11.1999 as Lecturer on daily wage and they were working continuously as per the record filed by the petitioners along with the writ petition uptil 08.08.2014 by placing the supportive document i.e. attendance register and the said specific averment in para 24 has not been denied in the counter affidavit meaning hereby, the respondent no. 2 without looking into the records has mentioned the date as 09.11.2012 in the impugned order showing that the petitioners had worked uptil that date.
The relevant paragraphs of the judgment relied by learned counsel for the petitioner in the case of Uma Devi (supra) which has been followed in the case of State of Karnakata vs. M.L. Kesari [(2010) 9 SCC 247], are quoted hereinbelow:-
'6. The concept of a one-time measure was further explained in Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 in paras 9, 10 and 11 of the Report which read as follows: (SCC pp. 250-51, paras 9-11)
"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.
11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Uma Devi (3) as a one-time measure."
In the same very judgment, after discussion the intent and mandate of the Constitution of India, the judgment in the case of Uma Devi (3), the Supreme Court observed as under:
"10.Under the circumstances, we are of the view that the Regularization Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularization Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularized unless there is some valid objection to their regularization like misconduct, etc."
The relevant paragraphs of the judgment in the case of Ram Kumar (supra) relied by learned counsel for the petitioners is quoted hereinbelow:-
"In the light of the said, he argues that the import of the benefit of regularization cannot be seen in a narrow domain and should be interpreted so as to give the beneficial piece of scheme its full import as was desired by the Supreme Court in the case of Uma Devi (supra).
The respondents have taken a narrow view in rejecting the claim only on the ground that the petitioner was not in employment in the year 2016.
Considering the submissions made at the bar and as recorded above, this Court is to decide as to whether, the petitioner would be entitled for regularization on account of the services rendered by him ? and whether the action of the respondents in not regularizing the services of the petitioner can be termed as arbitrary and illegal.
In the light of the law as discussed above, it is clear that the benefit of regularization as onetime measure was directed in the case of Uma Devi (supra) for the employees who had rendered more than ten years' of service as daily wages, ad-hoc/casual employees. The said direction had to be followed within a reasonable time. The State Government while issuing the Regularization Rules of 2016 kept sitting over the mandatory directions given by the Supreme Court in the case of Uma Devi (supra) and framed the Rules in the year 2016 giving the benefits of regularization only to the employees who had worked w.e.f. 2001 and were in employment on the date of issuance of the Rules. Thus, for getting the benefits of regularization, the employee had to render at least fifteen years of service as a casual / ad-hoc employee which was clearly against the mandate of the Supreme Court in the case of Uma Devi (3)(supra).
In the present case, the petitioner had clearly served sixteen years on ad-hoc basis and his right for regularization stood crystallized in view of the judgment of the Supreme Court in the case of Uma Devi (supra) which had granted the benefit of consideration for regularization for the employees who had worked for more than ten years. Even otherwise, the petitioner had always been agitating that he was not permitted to join the duties after the year 2013 and although there is no adjudication of his contention that he was not permitted to work after 2013, it can be reasonably presumed that a person who had worked for sixteen years on casual basis and is agitating his rights constantly before the High Court in the form of at least three writ petitions, there is no reason to hold that the petitioner would not be entitled for the regularization only because he could not establish that he was not working with the respondents till the year 2016 deliberately.
Finding the rights of the petitioner for regularization flowing from the judgment of the Supreme Court in the case of Uma Devi (supra) and holding that the petitioner was not permitted to work after the year 2013 and coupled with the fact that the Selection Committee had itself recommended the case of the petitioner for regularization, the writ petition stands allowed. The respondents are directed to grant the benefit of regularization to the petitioner as has been done in the case of the persons who were similarly employed and in terms of the recommendations made by the selection committee dated 06.09.2018 (Annexure no.15). The said exercise shall be completed and the benefit of regularization shall be granted to the petitioner by passing a proper order within a period of four months from today."
As far as submission of learned Standing Counsel that for the first time, the regularization Rules had come in the year 1989 and thereafter amended in the year 2001 and lastly in the year 2016, also denied by learned counsel for the petitioner by placing the Rules namely the U.P. Regularization of Daily Wages Appointment on Group ''C'' Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998 for the first time came into existence in the year 1998 and the petitioners belong to Group C post and a new Rule came in the year 2016 namely 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) Rules, 2016.
The submission of learned Standing counsel that in the case of Ram Kumar (supra), the selection committee had itself recommended the case of the petitioners for regularization does not make any difference in the light of the judgment in the case of Uma Devi (supra) and State of Karnakata vs. M.L. Kesari [(2010) 9 SCC 247] and in those judgments, the Hon'ble Supreme Court did not make any distinction that the benefit would be given only to those whose names have already been recommended by the selection committee for regularization.
The case of the petitioners is covered by the judgment in the cases of Uma Devi (supra), Kesari (supra) and Ram Kumar (supra) as the petitioner no. 1 was appointed in the year 1987 and petitioner no. 2 was appointed in the year 1999 as such petitioner no. 1 & petitioner no. 2 had completed ten years of service in the year 1997 and 2009 respectively without there being any protection of any interim order and as it has been held in the cases mentioned above. The petitioners had worked uptil the year 2014, meaning thereby petitioner no. 1 had completed 27 years of service and petitioner no. 2 had completed 15 years of service. The case of the petitioners is squarely covered as per the judgments mentioned above.
Once this Court vide order dated 04.08.2021 in W.P. No. 12272 (S/S) of 2017 has allowed the writ petition of the petitioners setting aside the impugned rejection order dated 01.03.2017 by which the claim of the petitioners for regularization was rejected on the ground that the Scheme has come to an end so their case cannot be considered, against which the respondents had not filed any Special Appeal. Now they cannot take a plea that the petitioners had worked uptil the year 2012.
In the result, the writ petition is allowed.
The impugned order dated 18.11.2021 by which the claim of the petitioners for regularization on the post of Lecturer in I.T.I. has been rejected is hereby quashed.
The respondents are directed to grant the benefit of regularization to the petitioners. The benefit of regularization shall be granted to the petitioners by passing a proper order within a period of four months from the date of production/receipt of certified copy of this order.
Order Date :- 1.2.2024
Nitesh
