Ram Chander And 54 Ors. vs State Of U.P. Thru Addl.Chief ...
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Allahabad High Court

Ram Chander And 54 Ors. vs State Of U.P. Thru Addl.Chief ... on 22 May, 2024

Author: Abdul Moin

Bench: Abdul Moin

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:38881
 
Court No. - 6
 

 
Case :- WRIT - A No. - 7716 of 2018
 

 
Petitioner :- Ram Chander And 54 Ors.
 
Respondent :- State Of U.P. Thru Addl.Chief Secy.Animal Husbandry Lko.Andors
 
Counsel for Petitioner :- Anshuman Singh,Chitresh Kumar Sahu,Girish Chandra Verma,Kirti Kar Tripathi,Pradeep Kumar,Prem Chandra Chauhan,Shrikant Tripathi,Triveni Prasad
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.
 

1. Heard learned counsel for the petitioner as well as learned Standing counsel for the respondents.

2. The instant petition has been filed praying for the following main relief(s):

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned office order dated 22.02.2018 passed by respondent No.4 contained as annexure No.1 to the writ petition and the order dated 15.01.2018 issued by the respondent No.3 after summoning the original from the respondents No.3 & 4.

(i)(a) Issue a writ in the nature of Certiorari or any other writ or order or direction quashing impugned letter No. 1906/Estha.-2/1- Kha/14(1442)/2018 dated 26.4.2018 whereby the respondents have rejected the representation of the petitioners dated 11.2.2018 in pursuance of orders of this Hon'ble High Court dated 2.2.2018 passed in Writ Petition No. 3168 of 2018 (SS) in Re: Ram Chandar & 59 others Vs. State of U.P. & Others. The true copy of the same contained as Annexure No. 11-A. to this writ petition.

(i)(b) Issue a writ in the nature of mandamus or any other writ or directions commanding th? respondents to regularize the service of the petitioners in pursuance of the Government notifications issued by the State of U.P. for the regularizing the services of the daily wages/work charged/contractual employees of Class -III, Class- IV post (outside the purview of Uttar Pradesh Public Service Commission) and aforesaid the Uttar Pradesh Regularization Rules, 2016 No. 9/2016/2/1/97-Ka-2/2016 Lucknow dated 12th September 2016 issued time to time maintaining their seniority and with all consequential benefits from the date of which the services of the junior to him were regularized by the opposite parties ignoring their seniority and length of service.

(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to allow the petitioners to continue on their respective posts and pay the salary till the claim of the petitioners for regularization of their services in accordance with the Regularization Rules, 2001 and Regularization Rules 2016 is finally decided by the respondents."

3. Bereft of unnecessary details, the case set forth by learned counsel for the petitioners is that the petitioners have been working on daily wage basis under the respondents having been engaged since the year 1990-98 as stands recorded in the list, which has been issued by the respondents themselves and has been filed as annexure 1 to the petition. The petitioners had staked their claim for being regularized in service after the promulgation of Rules, 2016 namely Uttar Pradesh Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in Government Department on Group 'C' and Group 'D' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016 (hereinafter referred to as "Rules, 2016")

4. The respondents, vide order impugned dated 22.02.2018, a copy of which is annexure 1 to the petition, in pursuance to directions contained in order dated 15.01.2018, have terminated the services of the petitioner on the ground that the petitioners have not been found fit for being regularized under the Rules, 2016 and keeping in view of Clause 10 of the Rules, 2016 their services have been dispensed with after giving them one month severance pay.

5. By means of order dated 26.04.2018, a copy of which is annexure 11(A) to the petition, the regularization of the petitioners have been rejected on the ground that as per the rules namely Uttar Pradesh Pashupalan Vibhag Samuh Gha Sevaniyamavali, 1993 (hereinafter referred to as "Rules, 1993") which prescribes a Class- IV employee to be possessed of the qualification of being at least Class- V pass, the petitioners are not educationally qualified, consequently, they cannot be regularized in service.

6. The contention of learned counsel for the petitioners is that once, admittedly, the petitioners have been engaged since the year 1990-98 and on the date of passing the orders impugned, had rendered services ranging between 20-28 years, consequently, keeping in view of the law laid down by the Apex Court in the case of Gujrat Agricultural University Vs. Rathod Labhu Bechar & Others (2001) AIR SCW 351 that long continuous service would itself be a sufficient requisite qualification and that once the petitioners have worked for a sufficiently long time without complaint on these posts would be a ground by itself for relaxation of the aforesaid eligibility condition and it would not be appropriate to disqualify them on this ground for their absorption / regularization.

7. It is thus prayed that keeping in view of the law laid down by the Hon'ble Supreme Court in the case of Rathod Labhu Bechar (supra), the order impugned merits to be set aside with a direction to the respondents to regularize the services of the petitioners.

8. On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit, argues that once the Rules, 1993 stipulate that a person to be appointed on a Class- IV post is to have a qualification of Class- V pass and the petitioners having failed to produce any documents to indicate that they are Class- V pass as such, there is no error or infirmity in the order passed by the respondents while rejecting the claim of the petitioners for regularization vide order impugned dated 26.04.2018. Further keeping in view of the Clause 10 of the Rules, 2016 as the petitioners have not been found eligible for regularization as such, there services have been terminated vide order impugned dated 22.02.2018 and there is no error or infirmity in the order passed.

9. Heard the learned counsels for the parties and perused the record.

10. From a perusal of the record, more particularly, the order impugned dated 22.02.2018, it emerges that the petitioners have been continuing in service since the year 1990-98 on daily wage basis i.e. on the date of termination of service they had been in service since the past 20 to 28 years. Their claim for regularization has been rejected vide order impugned dated 26.04.2018 by contending that as the Rules, 1993 stipulate that a person to be appointed on Class- IV post has to have the qualification of Class- V pass and as the petitioners are not possessed with the said qualification as such, they are unfit for being regularized in service. Further, by following Clause 10 of the Rules, 2016, there services have also been terminated.

11. Admittedly, the petitioners were continuing in their service since the last 20-28 years on the date of passing of the order impugned. The Hon'ble Supreme Court in the case of Rathod Labhu Bechar (supra) while placing reliance on the earlier judgment passed in the case of Bhagwati Prasad Vs. Delhi State Mineral Development Corporation 1990 (1) SCC 361 has held as under:

"26. In the light of the aforesaid decisions we now proceed to examine the proposed scheme. Under Clause 1 it is proposed that all daily wage workers, whether skilled, semi-skilled or unskilled who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1999 is to be regularised and be put in the time scale of pay applicable to the corresponding lowest grade in the university. However, the said regularisation is subject to some conditions. Under Clause 1(a) such employee is eligible only only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility clause. The submission is, those working for a period of 10 or more years without any complaint is by itself a sufficient requisite qualification and any other rider on the facts of this case would prejudice these workers. We find merit in this submission. We have perused the qualifications referred in the aforesaid recruitment rules according to which, qualification for Peon is that he should study up to 8th Std., for Operator-cum-Mechanic, should have Diploma in Mechanic having sufficient knowledge of vehicle repairing experience in automobiles or tractors Dealers workshop for two years, for Chowkidar, he must be literate and good physique. Literate is not defined. For Plumber to have I.T.I. Certificate.

We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1 (a), need modification to this effect.

27. In Bhagwati Prasad v. Delhi State Mineral Development Corporation, 1990(1) SCC 361: (AIR 1990 SC 371: 1990 Lab IC 126), this Court observed (para 6 of AIR & Lab IC):

"The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them: The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and it is sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications."

28. Thus in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of their regularisation. Clause 1(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post."

(emphasis by the Court)

12. From a perusal of the judgment in the case of Rathod Labhu Bechar (supra), it clearly emerges that the Apex Court has held that the daily wage workers who have been working for such long number of years without complaint on the post is a ground by itself for the relaxation of the aforesaid eligibility condition and that it would not be appropriate to disqualify them on the ground that they did not fulfill the prescribed educational qualification.

13. In the instant case also, admittedly, the petitioners have worked for the period of 20 to 28 years on the date of passing the order impugned. The claim for regularization has been rejected on the ground that they do not fulfill the qualification of Class- V pass. Once the petitioners having served for the last 20 to 28 years, consequently, following the law laid by the Apex Court in the case of Rathod Labhu Bechar (supra) & Bhagwati Prasad (supra), the long working of employees as daily wagers without complaint would be a ground by itself for relaxation of the aforesaid eligibility condition.

14. Thus it is apparent that the claim of the petitioners for regularization have wrongly been rejected vide the order impugned dated 26.04.2018.

15. So far as the order dated 22.02.2018 in pursuance to order dated 15.01.2018 by which the services of the petitioners have been terminated is concerned, the Court finds that although the regularization of the petitioners has been rejected vide subsequent order dated 26.04.2018 yet even earlier, the respondents have proceeded to terminate the services of the petitioners. Consequently, the order of termination cannot be said to be legally valid in the eyes of law, more particularly, when the claim for regularization had been rejected later and the respondents had terminated the services of the petitioners earlier. Even otherwise, the Court has found that the regularization of the petitioners has been wrongly rejected.

16. Keeping in view of the aforesaid discussion, the writ petition is allowed. The orders impugned dated 22.02.2018 & 26.04.2018, copies of which are annexed as annexure Nos. 1 & 11(a) to the writ petition respectively, and the order dated 15.01.2018, referred to in order dated 22.02.2018 are quashed so far as it relates to the petitioners. The respondents are directed to consider the claim of the petitioners for regularization under the relevant rules keeping in view of the discussion made above. The respondent shall proceed to re-engage the petitioners in service as their termination orders have been quashed. Let the consideration for regularization be done by the respondents with a period two months from the date of receipt of the certified copy of this order.

Order Date :- 22.5.2024

S. Shivhare