Allahabad High Court
Rajesh Kumar Chaube And Others vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 21 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:38459
Court No. - 20
Case :- WRIT - A No. - 8610 of 2023
Petitioner :- Rajesh Kumar Chaube And Others
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Urban Development, Lucknow And 4 Others
Counsel for Petitioner :- Ghaus Beg
Counsel for Respondent :- C.S.C.,Namit Sharma
Hon'ble Shree Prakash Singh,J.
Supplementary short counter affidavit filed today by Sri Namit Sharma is taken on record.
Heard learned counsel for the petitioners, Sri Namit Sharma, learned counsel for the opposite party nos. 3 and 5, Sri Pankaj Patel, learned Additional Chief Standing Counsel for the State.
By means of the present petition, the petitioner has assailed the order dated 23.08.2021 and office memorandum dated 08.12.2021 passed/issued by opposite party no. 4.
Contention of the counsel for the petitioners is that the petitioners were engaged/appointed in the department on contractual basis, in between 01.07.1999 to 30.06.2001 and thereafter, the State Government issued an order on 23.07.2012, directing all the District Magistrates and Municipal Commissioners that all those persons who have illegally engaged/appointed on contractual basis in the various autonomous bodies and municipal corporations, be terminated and in compliance thereof, the petitioners were terminated orally, thereafter, the petitioners preferred the Writ Petition Nos. 7043 (S/S) of 2012 and 6758 (S/S) of 2012. He submits that an interim order was passed on 05.11.2012, in Writ Petition No. 6038 (S/S) of 2012.
He argued that once, the State Government framed the U.P. Regularization on Persons Working on Daily Wages or on Contract Basis in Government Department on Group C and Group D Post (outside the purview of the U.P. Public Service Commission), Rules, 2016 (hereinafter referred to as 'Rules, 2016'), the Municipal Commissioner issued a letter on 31.01.2017 containing the list of contractual employess, including the petitioners, who were working then, on the post of Lighter/Porter (Class IV) Post in the Street Light Department, Nagar Nigam, Lucknow, prior to 31.12.2001 and requested the State Government for creation of supernumerary post for considering the regularization of the services of the petitioners.
He next added that on 15.02.2018, the Director, Local Body issued a letter to the State Government that due to exigency of services, the contractual employees who are being appointed on or before 31.12.2001, be continued and their case may kindly be considered for regularization. Subsequently, the Municipal Commissioner has also issued a letter on 25.10.2019 to the Director, Local Bodies for necessary action in this regard. The Director, Local Body sent the proposal to the State Government on 2.11.2019 for necessary action but on 08.12.2021, the opposite party no. 4 terminated the services of the petitioners on the basis of the approval given by the opposite party no. 3, and thereafter, a writ was preferred, bearing no. 1307 of 2022, which was decided and against the same, an Special Appeal was preferred bearing Special Appeal No. 96 of 2018 along with other connected appeals, including the present petitioners, which was finally decided on 23.09.2022.
He referred paragraph 15 and 26 of the abovesaid judgement, which are quoted hereinunder:-
"15. So far as the aforesaid arguments made by the learned counsel representing the Local Bodies is concerned, when we peruse the judgment and order dated 10.04.2017 passed by this Court in Special Appeal No.702 of 2014, Ali Raza and others vs. State of U.P. and Ors, what we find is that though a reference to the Regularization Rules, 2016 has been made by a coordinate Bench of this Court, however the Court after referring to the said Rules only stated that the rules will not come to the rescue of the appellants-petitioners of the said special appeal who were engaged in local bodies and whose engagement had been put to an end much prior to the date of enforcement of the Regularization Rules, 2016. Accordingly, so far as the applicability of Regularization Rules, 2016 in the case of the appellants-petitioners in this bunch of special appeals is concerned, in view of what has been observed by the Division Bench in its judgment dated 10.04.2017 the rules may not apply to those contractual employees whose services were dispensed with prior to the date of enforcement of the Regularization Rules, 2016, that is to say, prior to 12.09.2016, however those who are continuing even after the said date i.e. after 12.09.2016 the rights crystallized in such contractual employees to be considered for regularization of their services on the basis of the provisions contained in Regularization Rules, 2016, in our considered opinion, cannot be denied to them.
26. Having regard to the overall facts and circumstances of the case and also taking into account the right of the appellants-petitioners of being considered for regularization under the Regularization Rules, 2016 which admittedly have been enforced by means of the notification dated 12.09.2016 and have been adopted to be applicable to the Urban Local Bodies by means of the Government Order dated 03.01.2017, we dispose of this bunch of special appeals with the following directions;-
(i) Cases of all the appellants-petitioners shall be considered for regularization of their services in terms of the provisions contained in Regularization Rules, 2016.
(ii) Accordingly, the appointing authority shall prepare an eligibility list of the candidates, who may be found eligible to be considered for regularization of their services in terms of the Regularization Rules, 2016 within three months from the date of production of certified copy of this order before the authority concerned.
(iii) The appointing authority shall constitute a Selection Committee as per the provisions contained in the Regularization Rules, 2016 and refer the eligibility list to be prepared in terms of the Regularization Rules, 2016 to the Selection Committee which shall adjudge the suitability of the eligible candidates and take decision for regularizing their services. This exercise shall be completed, as observed above in (ii) within three months from the date this order is communicated to the authority concerned.
(iv) In case on completion of this exercise in the respective Unban Local Bodies where the appellants-petitioners were engaged/are working, certain eligible contractual employees still remain to be considered for regularization for want of vacant posts, the Local Body concerned shall seek approval of the State Government for creation of supernumerary posts in terms of the provisions contained in the proviso appended to rule 5 of the Regularization Rules, 2016.
(v) In case of such a need, the proposal seeking approval of the State Government for creation of supernumerary posts shall be made by the Local Body concerned to the State Government at the earliest after the exercise of regularizing the services of contractual employees against the available vacant posts is completed.
(vi) Once any such proposal from the respective Urban Local Bodies is received by the State Government seeking approval for creation of supernumerary posts, the State Government shall take decision thereon as mandated by the proviso appended to Rule 5 of the Regularization Rules, 2016 within eight weeks from the date of receipt of proposal.
(vii) Once the approval for creation of supernumerary post is accorded by the State Government, the process of regularizing the services of remaining contractual employees, who could not be regularized for want of availability of vacant post shall be initiated and completed within next three months thereafter.
(viii) We also direct that cases of all the appellants-petitioners in this bunch of special appeals shall be considered afresh for regularization of their services in terms of the Regularization Rules, 2016 irrespective of any such exercise having earlier been done.
(viii) Those appellants-petitioners who are continuing as on today shall continue to work till their cases for regularization under the Regularization Rules 2016 are considered and decided in terms of this order. However, once any contractual employee is not found eligible and suitable for regularization of his/her services, his/her services shall be terminated in terms of the provisions contained in Regularization Rules, 2016. "
Referring the aforesaid, he submits that the Hon'ble Coordinate Bench of this Court, while passing the order, has held that 'those who are continuing even after 12.09.2016, the rights crystalized in such contractual employees to be considered for regularization of their services on the basis of the provisions contained in Regularization Rules, 2016'. He also added that the aforesaid judgement and order was assailed before Hon'ble Apex Court while preferring SLP Civil Diary No. 18904 of 2023, which was dismissed on 05.07.2023 and the order passed by the Division Bench has attained finality. He further contended that it has been settled that those who were appointed and continuing up till 12.09.2016 would be entitled for their consideration of regularization but from the impugned order, it is evident that the same is passed on different premises as the authortiy concerned has observed that the contract for the post of Lighter/Porter are terminated on 08.12.2021.
Concluding his arguments, he submits that in this view of the matter the order dated 23.08.2023 is erroneous and goes against the judgement and order passed in Special Appeal No. 96 of 2018.
On the other hand, Sri Namit Sharma, learned counsel appearing for the opposite party nos. 3 to 5 has very vehemently opposed the contentions aforesaid and submits that so far as the Government Order dated 23.07.2012 is concerned, that has not been rescinded yet and the same has attained finality in light of the paragraph 13, 22 and 24 of the judgement and order passed in the Special Appeal. Adding his arguments, he submits that the same is not in contravention with the Government Order dated 03.01.2017, which has not been disclosed by the counsel for the petitioners while filing the writ petition. He has emphasized that a committee is reconstituted in light of the order dated 06.11.2023 passed in the present petition and that is considering the cases of all the contractual employees including the petitioners, who were the appellants in the special appeal. He supported his contention while narrating the short counter affidavit and the supplementary short counter affidavit and submitted that there is no merit in the writ petition and the same may be dismissed.
Considering upon the submission of the counsel for the parties and after perusal of the material placed on record, it transpires that vide order dated 23.08.2023, the petitioners have been denied for their regularization.
When this Court examines the matter on facts and law, it transpires that the authority concerned while passing the impugned orders, has considered that the services of the petitioners were dispensed with on 08.12.2021, which shows that the cutoff date, i.e., the commencement of Rules, 2016, is ignored.
It is further noticed that the order impugned do not speak about any consideration regarding the Government Order dated 23.07.2012 or the cutoff date of the Regularization Rules, 2016 and therefore, as per the settled proposition of law in case of Mohindhr Singh Gill and Another Vs. Chief Election Commissioner, New Delhi and Others, reported in (1978) 1 SCC 405, referred hereinbelow, the order impugned does not stand on its own legs.
Paragraph 8 of the abovesaid judgement is extracted as under:-
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1)
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."
In view of the abovesaid submissions and discussions, the impugned order dated 23.08.2023 and office memorandum dated 08.12.2021, with respect to all the petitioners are hereby quashed.
The writ petition is allowed, accordingly.
The Regularization Committee is hereby directed to take decision a fresh within a period of two months, from the date a certified copy of this order is produced before it.
This Court has also taken the note of the statement of counsel for the petitioner that the petitioner has no objection with respect to the constitution of Regularization Committee, who is considering the issue, regarding regularization of the petitioners as well as other employees entitled for the same and therefore, the constitution of committee shall remain intact.
Consigned to record.
Order Date :- 21.5.2024/Anurag, PS Gr-I
