Vishunu Kumar vs State Of U.P. Thru Secry. And 3 Others
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Allahabad High Court

Vishunu Kumar vs State Of U.P. Thru Secry. And 3 Others on 2 July, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:106942-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 1551 of 2013
 

 
Appellant :- Vishnu Kumar
 
Respondent :- State Of U.P. Thru Secry. And 3 Others
 
Counsel for Appellant :- S.N. Dubey,Anshu Chaudhary,Jai Singh,K.K. Shukla
 
Counsel for Respondent :- C.S.C.,Manish Goyal,Rajiv Gupta
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Prashant Kumar,J.

1. Heard learned counsel for the appellant and Sri Ashish Misra, learned counsel for the contesting-respondent.

2. Present Special Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules 1952 is preferred against the impugned judgement and order dated 13.9.2013 in Writ-A No. 49560 of 2008 (Vishnu Kumar v. State of U.P. & Ors.), wherein, the appellant/petitioner prayed for quashing of the order dated 06.09.2008 passed by the District Judge, Hathras by which the services of the petitioner were terminated. As an additional relief the petitioner has sought a direction to the respondents to reinstate him in service with all consequential benefits and to regularize his service, on the post of Driver, since the date of his initial appointment i. e. 01.05.2000 as also pay him regular salary with arrears. Learned Single Judge while dismissing the claim set up by the appellant/petitioner has considered in detail the Uttar Pradesh Regularization of Ad-hoc Appointments (On Posts Outside Purview of the Public Service Commission) Rules, 1979 (hereinafter referred to as Regularization Rules, 1979) and U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as Regularization Rules, 2001), which applies to Group "D" posts appointees who were appointed prior to 29.06.1991. The relevant portion of the judgement and order dated 13.9.2013 is extracted below.

"Sri Rajeev Gupta submitted that since under the initial appointment of 15.06.1998, the petitioner had worked only up to 14.09.1998 and, thereafter, it was a fresh appointment, which was after 30th June, 1998, the benefit of Regularization Rules, 1979 was not available to the petitioner. It has also been submitted that for entitlement to be considered for regularization the incumbent must continue on ad-hoc basis up to the cut off date. But in the instant case, the petitioner accepted a fresh appointment on temporary basis on 01.05.2000 i.e. before the amended cut off date that is, 20.12.2001, therefore, was not entitled to be considered for regularization. It was also pointed out that from the own statement of the petitioner i.e. paragraph 5 of the writ petition, he was appointed on 01.05.2000, on temporary basis, and the appointment order, which is Annexure-1 to the writ petition, also states so. Attention of the court was also drawn to paragraphs 6 and 8 of the writ petition wherein it has been stated that the petitioner was initially appointed on 18.01.1999 on ad-hoc basis and, thereafter, on temporary basis on 01.05.2000. Relying on the aforesaid statements, it has, thus, been submitted that from the own statement of the petitioner it is clear that he was appointed on 01.05.2000 and that his earlier appointment on ad-hoc basis stood automatically terminated much before the commencement of the Uttar Pradesh Regularization of Ad-hoc Appointments (On Posts Outside Purview of the Public Service Commission) (Third Amendment) Rules, 2001. The learned counsel for the respondent nos.2 to 4 further pointed out that the other employees, who were considered for regularization, were appointed by the then District Judge on the post of "Chaukidar", on temporary basis, by direct recruitment under Rule 4 (3) of U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 and, therefore, their case was different from that of the petitioner. It was further submitted that since the appointment of the petitioner was temporary and his services were not entitled to be regularized under the Rules, no fault can be found with the order of termination. It was also submitted that the judgment in the case of Janardan Yadav Vs. State of U.P. (supra) would not be applicable to the petitioner as that related to U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001, which applies to Group "D" posts appointees who were appointed prior to 29.06.1991.

Having considered the submissions of the learned counsel for the parties and on perusal of the record, the Court finds that the petitioner has himself claimed that he was appointed on 01.05.2000. Even if the petitioner had earlier worked on ad-hoc basis for some period in the year 1998, he did not continue in the said capacity up to the cut off date i.e. 20.12.2001, as provided under the amended rule 4 of the Regularization Rules, 1979. For entitlement to be considered for regularization under the Regularization Rules, 1979, the person concerned must have been directly appointed on ad-hoc basis on or before June 30, 1998 and must continue in service, as such, up to the date of commencement of Uttar Pradesh Regularization of Ad-hoc Appointments (On Posts Outside Purview of the Public Service Commission) (Third Amendment) Rules, 2001 that is, up to 20.12.2001. In the instant case, from the own showing of the petitioner he did not continue in the ad-hoc capacity up to the cut off date, but rather accepted a fresh temporary appointment on 01.05.2000. In such circumstances, the Court is of the view that the case of the petitioner does not fall within the ambit of the Regularization Rules, 1979.

It is settled law that regularization cannot be granted unless the Rules provide for it. The Regularization Rules, 1979, even after the amendment, do not provide for the regularization of an appointee of the year 2000. So far as the U.P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 are concerned they do not apply to the case of the petitioner, inasmuch as, they apply to a person who had been appointed on daily-wage basis since before June 29, 1991.

No other point was pressed by the learned counsel for the petitioner to assail the order of termination.

For the reasons aforesaid, there is no merit in the petition, it is, accordingly, dismissed. "

3. Initially, the present special appeal was entertained on 27.3.2015 and the same was allowed by the Division Bench setting aside the impugned judgment and order dated 13.9.2013 passed by learned Single Judge and the respondents were directed to give benefit of Regularisation Rules, 2001 to the petitioner/appellant. It also reveals from the record that thereafter review application was pressed to review the judgement and order dated 27.3.2015, which was allowed vide order dated 10.1.2019 and the appeal was directed to be heard de-nova. Hence, the matter came up before this Court for hearing.

4. In support of his submissions, learned counsel for the appellant/petitioner reiterates the claim set up before the learned Single Judge on the ground that the appellant/petitioner was appointed on ad-hoc basis as Driver in the Judgeship of Hathras, on 18.01.1999 and thereafter, he was accorded temporary appointment on 1.05.2000. He submits that the petitioner is claiming continuous working since 18.01.1999 and his service has been arbitrarily dispensed with whereas those of other similarly situated persons has been regularised. He submits that learned Single Judge has erred in law while rejecting the claim set up by the appellant/petitioner on technical ground whereas the appellant/petitioner is claiming benefit of Regularisation Rules, 2001.

5. Per contra, Sri Ashish Misra, learned counsel for the contesting-respondent vehemently opposed the special appeal and submits that learned Single Judge has rightly appreciated the evidence on record and the claim set up by the appellant/petitioner whereas on the face of record learned Single Judge found that the petitioner himself claimed that he was appointed on 1.05.2000. Even if the petitioner had earlier worked on ad-hoc basis for some period in the year 1998, he did not continue in the said capacity up to the cut off date i.e. 20.12.2001, as provided under the amended rule 4 of the Regularisation Rules, 1979. He further submits that learned Single Judge carefully examined the claim set up by the appellant/petitioner in the guise of Regularisation Rules, 2001 and utterly failed to put up his case in the category as the same apply to a person who had been appointed on daily wage basis since before June 29, 1991. As such, there is no infirmity or illegality in the impugned judgement and order dated 13.9.2013, which requires interference by this Court.

6. After considering the submissions made by the learned counsels for the parties and upon perusing the impugned judgment and order, we notice that the same has been rendered by the learned Single Judge with cogent and justifiable reasons. In an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment and order.

7. In view of above, the special appeal sans merit and is, accordingly, dismissed.

Order Date :- 2.7.2024

A.K.Srivastava