Allahabad High Court
Ashutosh Dixit vs State Of U.P. Thru. Prin. Secy. Food And ... on 29 May, 2024
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:40762-DB
Court No. - 2
Case :- SPECIAL APPEAL No. - 127 of 2024
Appellant :- Ashutosh Dixit
Respondent :- State Of U.P. Thru. Prin. Secy. Food And Civil Supplies Lko. And Another
Counsel for Appellant :- Vinay Misra
Counsel for Respondent :- C.S.C.
Hon'ble Rajan Roy,J.
Hon'ble Om Prakash Shukla,J.
1. Heard.
2. After hearing the learned counsel for the parties and perusing the records including the records of Writ petition No. 3558 (S/S) of 2014 decided on 02.05.2017 what comes out is that initial engagement of the petitioner was on contractual basis under a scheme of Government known as Annapurna scheme as learned counsel for the appellant could not satisfy us that the factual position was otherwise and although the said scheme came to an end in 2006, it is also a fact that the appellant herein was allowed to continue as Computer Operator i.e., not under the scheme but otherwise. The other fact which has come to light is that sometimes in July 2012, as claimed by the appellant, his salary was stopped which ultimately led to the filing of aforesaid writ petition No.3558 (S/S) of 2014 seeking a writ of certiorari inter-alia quashing the order, if any, by which the functioning of the petitioner had been restrained as Computer Operator in the office of opposite party and also seeking a mandamus to allow him to work as usual, as computer operator, and to make payment of due salary with effect from July 2012 to September 2013 and to consider his case for regularization on a class-III post.
3. In this writ petition initially an interim order was passed on 30.07.2014 in the following terms:-
"As per direction of this court the learned Standing Counsel received instructions and submits that in the light of the Government Order dated 30th of August, 2013 only those persons have been allowed to continue and get the contractual amount, who holds the minimum eligibility criteria, as also have been appointed through the public advertisement in accordance with the procedure prescribed therefor.
Admittedly, the persons who have been appointed through outsourcing agency on contract basis are still working , therefore, I am of the view that once the contractual appointment has been permitted and the persons who are appointed under the terms of contract, are still working, there is no occasion to discontinue the petitioner's service unless his eligibility is assessed by the competent authority.
One more fact is pertinent to point out as has been disclosed by the learned Standing Counsel that the respondents are engaging the Computer programmers, but through the agency which is named as DOACH. This Government order was issued on 6th of September, 2011. It is not in dispute that the petitioner has been working since 2000, therefore, I am of the view that making any change in the system of engagement of contractual employee, does not mean to oust the persons, who had been already working under the old terms and conditions. This Government Order may have prospective effect, but it shall have no adverse affect to the employees who had already been engaged prior to existence of this Government Order.
Therefore, at this stage, I hereby, as an interim measure, provide that the petitioner shall be allowed to continue, may be on contractual basis subject to fulfillment of eligibility as well as assessment of the same by the Selection Committee.
Three weeks time as prayed by learned Standing counsel is allowed to file the counter affidavit.
List thereafter."
4. Thereafter, as the said order was not complied therefore contempt petition No.1082 of 2015 was filed wherein notices were issued and thereafter appellant herein was allowed to continue in service, as claimed by the appellant's counsel.
5. Ultimately the said petition was disposed of on 02.05.2017 in following terms:-
"Heard.
The objection raised in the counter affidavit is that the petitioner was a contractual employee, therefore, his claim for regularization could not be considered. But now the rules namely The Uttar Pradesh Regularisation 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 (in short Rules 2016) have come into force with effect from September-2016. Therefore the present writ petition is disposed of with a direction to the opposite party no. 2/ The Commissioner, Food and Civil Supplies, Uttar Pradesh, Jawahar Bhawan, Lucknow to consider the claim of the petitioner for regularization of his services if there is no other legal impediment and if the petitioner is covered by the aforesaid rules of 2016, which are also applicable to the contractual employees.
It is made clear that, if there is any other person who is similarly situated or has a preferential right under the said rules, he shall also be considered accordingly. Let it be done from the three months from the date of receipt of certified copy of this order before opposite party no.2. However, it is made clear that benefit of this order shall be available only if the petitioner is still working."
6. In pursuance thereof the claim of the petitioner was considered for regularization and the same was declined vide order dated 02.06.2017 interalia stating that a scheme of the Central Government was implemented in the State of UP in April 2000, known as Annapurna Scheme, which was a seasonal scheme and the appellant herein was engaged for seasonal work. In June 2012 as there was no requirement of such work in the said scheme the appellant was dis-engaged. Then writ petition no.3558 (S/S) of 2014 has been referred as also interim order dated 30.07.2014, in pursuance of which he was allowed to continue. The order then refers to the final order passed in the said writ petition, it thereafter proceeds to consider the claim of the petitioner for regularization. The order states that the services rendered by the petitioner were under a scheme and that even after i.e., for 2007-2012 work was taken from him on contractual basis for performing seasonal work relating to sale and purchase of wheat. He was never engaged as a regular contractual employee or on work charge basis, rather he was seasonal employee, therefore he was not covered by 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 (hereinafter referred to as 'Rules, 2016'). It was this order which was under challenge before the writ Court which had dismissed the writ petition of the appellant vide impugned judgment and order dated 08.04.2024 as the appellant was not covered by the said Rules, which clearly provides vide Rule 2 (iii) "that those appointed in working schemes and projects would be outside its purview." This apart learned Standing Counsel says that the appellant worked till 2006 under the Annapurna Yojna. Even assuming that thereafter he worked as computer operator and not under any Yojna, although it is not the case, even then this will not benefit the appellant because the cut-off date prescribed in the Rules 2016 is of 2001 and as the services rendered under the scheme cannot be taken into consideration, therefore he is not entitled to such benefits.
7. Learned counsel for the appellant could not satisfy the Court that the facts and law as discussed herein-above was to the contrary, however, he has relied on the decision of Hon'ble the Supreme Court reported in 2024 INSC 332, arising out of SLP(C) Nos.22241-42 of 2016, (Vinod Kumar and others Etc. Vs. Union of India and others). We have perused the said judgment and do not find any reference therein to the Rules 2016 under which regularization was to be considered and has been considered. Rule 2 (iii) of the Rules 2016 has not been challenged by the appellant. Unless and until it is held to be ultra-vires and struck down, we fail to understand as to how any relief could have been granted by the writ Court or for that matter can be granted by this Court in an intra-Court appeal dehors the rules made under the proviso to Article 309 of the Constitution.
8. We accordingly do not find any merit in the appeal. Appeal is dismissed.
[Om Prakash Shukla,J.] [Rajan Roy,J.]
Order Date :- 29.5.2024/Vipul
