Allahabad High Court
State Of Up And 4 Others vs Shailendra Kumar Singh And 9 Others on 8 November, 2024
Bench: Vivek Kumar Birla, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:175421-DB
Court No. - 29
Case :- SPECIAL APPEAL No. - 711 of 2024
Appellant :- State of U.P. and 4 others
Respondent :- Shailendra Kumar Singh and 9 others
Counsel for Appellant :- Devesh Vikram,Kunal Ravi Singh
Counsel for Respondent :- Jitendra Kumar Srivastava
Hon'ble Vivek Kumar Birla,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Fuzail Ahmad Ansari, learned Standing Counsel appearing for the State-appellants and Sri Gejendra Pratap, learned Senior Counsel assisted by Sri Jitendra Kumar Srivastava, learned counsel for the respondents.
2. The present intra court appeal is directed against the judgment and order dated 09.04.2024 passed in Writ-A No.13630 of 2023 (Shailendra Kumar Singh and others Vs. State of U.P. and others) whereby the order dated 25.07.2023 passed by the Principal Secretary, Urban Development, Government of Uttar Pradesh, Lucknow, rejecting the claim for regularization of the petitioners, has been quashed and a direction has been issued for passing fresh orders within stipulated time period.
3. The controversy involved in the present case relates to the claim of the petitioners/opposite party nos.1 to 9, stated to be working as daily wagers on various class-3 and class-4 posts in the establishment of the Nagar Panchayat, Harraiya, District Basti (for short 'the Nagar Panchayat'), for regularization under the U.P. 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 U.P. Public Service Commission) Rules, 20161.
4. The requisite information in regard to the aforesaid claim is stated to have been forwarded by the Executive Officer of the Nagar Panchayat by means of a communication dated 05.09.2017, and since the same remained pending before the concerned authority, the petitioners approached the Court by filing Writ-A No.3491 of 2020 which was disposed of by means of an order dated 03.03.2020 upon a statement of the learned Standing Counsel for the State authorities that claim of the petitioners for regularization shall be duly considered in accordance with law and the provisions made under the scheme and a final decision in that respect would be communicated to the concerned Nagar Panchayat.
5. Consequent to the aforesaid direction the claim of the petitioners was rejected by the Director of Local Bodies, U.P. by means of an order dated 04.12.2020, holding that since the Executive Officer of the Nagar Panchayat had not put forward any demand for creation of supernumerary posts, no regularization could be ordered in the petitioners' favour.
6. The aforesaid order was put to challenge in Writ-A No.10908 of 2021, which was disposed of by the Court by means of a judgment dated 28.10.2021 whereby the order dated 04.12.2020 passed by the Director, Local Bodies, was set aside and the matter was remitted to the Director/State Government for a fresh consideration bearing in mind the order passed by the Court, as also Rule 5 of the Rules of 2016.
7. The direction issued in the aforesaid judgment dated 28.10.2021 having not been complied within the prescribed time period, the petitioners moved a contempt application being Contempt Application (Civil) No.2703 of 2022; thereafter the Special Secretary to the State Government in the Department of Urban Development passed an order dated 31.10.2022 rejecting their claim, on the ground that neither copies of the petitioners' appointment letters nor certificates of their continuance in service were made available by the Executive Engineer of the Nagar Panchayat or Directorate of Local Bodies.
8. The order dated 31.10.2022 was subjected to challenge by means of Writ-A No.4506 of 2023, and when the same came up for admission, on 17.03.2023, the Court, after observing that the order dated 31.10.2022 passed by the Special Secretary could not be said to be an order on merits as directed in terms of the judgment dated 28.10.2021 passed in Writ-A No.10908 of 2021, directed the Special Secretary, Nagar Nikaya, Government of UP, to pass a reasoned and speaking order on merits after summoning all relevant records, and to file the same alongwith his personal affidavit before the Court.
9. In compliance of the aforesaid order, the Principal Secretary, Local Bodies passed the order dated 25.07.2023, against which the petitioners again approached the Court by filing Writ-A No.13630 of 2023, which has been decided after exchange of pleadings between the parties, by means of the judgment dated 09.04.2024, and the same is subject matter of the present special appeal.
10. The appeal is being pressed by the State-appellants primarily by seeking to urge that the appointment of the writ petitioners was not in accordance with the procedure under the relevant rules, and hence they were not entitled for regularization under the Rules of 2016.
11. In response to the aforesaid submission made by the State-appellants, learned Senior Counsel appearing for the petitioners-opposite parties has submitted that the manner in which the petitioners had been appointed would be of no consequence in view of the admitted position regarding their engagement as daily wagers by the Nagar Panchayat and their continuance in service as such as on the date of enforcement of Rules of 2016.
12. It is submitted that the necessary ingredients for regularization under the Rules of 2016 having been fulfilled, their claims for regularization could not have been turned down by the State authorities by raising questions with regard to the manner of their initial appointments.
13. The argument sought to be put forth before us on behalf of the State-appellants, is the same as the reasoning assigned by the Principal Secretary, Local Bodies in the order dated 25.07.2023, which was subjected to challenge in the writ petition. It seeks to raise questions regarding the validity of the initial appointments of the petitioners so as to hold them disentitled to regularization under the Rules of 2016, and the same has been duly considered and analysed by the learned Single Judge in the judgment under appeal. For ease of reference, the relevant observations and findings recorded in the judgment of the writ Court, are being extracted below:-
"21. The order passed by the Principal Secretary is also fundamentally flawed, because it proceeds on the assumption depending on the Collector's report that the petitioners' initial appointments were not validly made and that do not entitle them to regularization under the Rules of 2016. May be the petitioners were retained against particular posts, but they were never appointed. They were just engaged as daily-wagers, or some kind of employees, whose services were hired dehors the rules. The fact that some kind of an advertisement of the vacancy was there for the purpose of hiring employees that resulted in the petitioners' engagement and a resolution passed by the Board, are merely few steps of extra caution that the Nagar Panchayat Board took at the relevant time way back in the year 2000. The right to be regularized flows from the Rules of 2016 and it would be gainful to refer to the provisions of Rules 4, 5, 6 and 7 of the Rules of 2016, which read:
"4. Definitions.-Unless there is anything repugnant in the subject or context:
(a) "Appointing Authority" in relation to a Group 'C or Group 'D' Post means the authority empowered to make appointment on such post under the relevant Service Rules or the executive instructions issued by the Government, as the case may be;
(b) "Constitution" means the Constitution of India;
(c) "Contract" means legally enforceable agreement between two or more parties with mutual obligations;
(d) "Daily Wages" means a person who is engaged or employed or deployed on a casual work on day to day basis and whose wages/remuneration is calculated on the basis of the days he has worked;
(e) "Governor" means the Governor of Uttar Pradesh;
(f) "Government" means the State Government of Uttar Pradesh;
(g) "Work Charge" means a person of temporary establishment or employed on the work of this nature, whose pay, for the time being, is charged directly on the work on which he is engaged.
5. Regularisation to be made on available vacant post.-Subject to the provisions of Rule 2, regularisation under these rules shall be done on available vacant post in a Government Department:
Provided that if vacant post is not available then, as and when required, a supernumerary post may be created with the approval of the Government.
6. Regularisation.- (1) Any person who-
(i) was directly engaged or employed or deployed or working on daily wages or on work charge or on contract in a Government Department on Group 'C or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) on or before December 31, 2001 and is still engaged or employed or deployed or working as such on the date of the commencement of these rules; and
(ii) possessed requisite qualifications prescribed for regular appointment for that post at the time of such engagement or employment or deployment on daily wages or on work charge or on contract, under the relevant service rules and, subject to the provisions of above mentioned Rules 2 and 5.
shall be considered for regular appointment on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) in permanent or temporary vacancy as may be available on the date of the commencement of these rules, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.
(2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes and other categories, shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as amended from time to time, and the orders of the Government in force at the time of regularisation under these rules.
(3) For the purpose of sub-rule (1), the appointing authority shall constitute a Selection Committee in accordance with the relevant provisions of service rules.
(4) The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of engagement or employment or deployment on daily wages, on work charge or on contract and, if two or more persons are engaged or employed or deployed together, from the order in which their names are arranged in the said engagement or employment or deployment order. The list shall be placed before the Selection Committee along with their character rolls and such other relevant records pertaining to them, as may be considered necessary to assess their suitability.
(5) The Selection Committee shall consider the cases of the candidates on the basis of their records, referred to in sub-rule (4), and if it considers necessary, it may interview the candidates also to assess their suitability.
(6) The Selection Committee shall prepare a list of selected candidates arranging their names in order of seniority and forward the same to the appointing authority.
7. Appointments.- The appointing authority shall, subject to the provisions of sub-rule (2) of Rule 6 make appointments from the list prepared under sub-rule (6) of the said rule, in the order in which their names stand in the list."
22. The definition clause in Rule 4(d) clearly shows that there could be employees engaged on daily-wages and by definition these are persons engaged or employed or deployed on casual work on a day-to-day basis and whose wages are calculated on the basis of the days that they work. Likewise, the work charged employees have been separately defined under Rule 4(g) of the Rules of 2016. The right to be considered for regularization is governed by Rule 6, which makes it clear that the eligibility for consideration covers persons, who are directly engaged or employed or deployed or working on daily-wages or on work charged basis or on contract in a government department on a Group-C and D posts, of course, falling outside the purview of the Uttar Pradesh Public Service Commission. Rule 6(1) further shows that the engagement of such daily-wagers etc. should have been made before December, 2001 and the person should still be engaged or employed on the date of commencement of the Rules of 2016.
23. The other requirement for regularization is possession of requisite qualifications prescribed for regular appointment to the post at the time the person was engaged or employed or deployed on daily basis. This Court while disposing of Writ-A No.10908 of 2021 had recorded a finding that the petitioners' engagement is prior to the cut-off date and they are working on the date of issue of notification, that is to say, the commencement of the Rules of 2016. This finding was recorded as undisputed and final inter partes. The State Government have no business to dispute or go behind this finding. While disposing of Writ-A No.10908 of 2021, my esteemed Brother Ashwani Kumar Mishra had remitted the matter to the Director/ State Government for a fresh consideration bearing in mind the other observations of His Lordship, but with discretion of the Government bound by the finding regarding the fact of engagement before the cut-off date and the continuing engagement of the petitioners on the date of enforcement of the Rules of 2016. The Rules of 2016 do not at all envisage initial recruitment of the employee in accordance with Rules. They possibly cannot. The Rules of 2016 are about regularization in service. These are concerned with regularization in service of persons, who have been engaged in concerned departments, except those not covered by Rules, as mentioned in Rule 2 prior to the cut-off date and their engagement is continuing on the date of commencement of the rules. The only other relevant factor for the entitlement to regularization under these Rules is the possession of requisite qualifications, prescribed for regular appointment to the post on which regularization is claimed as on date when the person concerned was engaged. The prescribed qualifications envisaged under Rule 6(1)(ii) are, therefore, to be seen with reference to the day when the person who claims regularization was engaged by the Department or other Local Body concerned.
24. This Court has, therefore, not the slightest hesitation in holding that the Principal Secretary took into consideration absolutely irrelevant matters while discarding the petitioners' claim, particularly the fact that the petitioners were not appointed in accordance with rules, when they were initially engaged. To even think that initial engagement could be done in accordance with Rules, betrays abject lack of understanding on the respondents' part about what regularization in service means. Quite apart, even if adherence to some rules at the time of entry is relevant under some different set of rules, the Rules of 2016 are not remotely concerned about it. These rules are designed to regularize service of men, who were appointed on daily-wages or contract or hired as work charged employees."
14. We have considered the submissions of learned counsel for the parties and have perused the records placed before us.
15. The engagement of the petitioners as daily wagers on or before the cut off date i.e. 31.12.2001, and their continuance in service as such until the date of enforcement of Rules of 2016, are facts which are undisputed and which stand conclusively determined in terms of the judgments in the earlier round of litigations between the parties.
16. The stand taken by the State authorities to deny the petitioners the benefit of regularization, runs contrary to the very object for which the Rules of 2016 were notified, i.e. for regularizing those persons who had been engaged in the specified establishments on or before certain cut off dates and who had been continued for fairly long period of time.
17. The right to be considered for regularization under Rule 6 of the Rules of 2016 provides that the eligibility for consideration would cover persons who are directly engaged or employed or deployed or working on daily wages or on work charge or on contract in a government department on group-C and D posts, falling outside the purview of the Uttar Pradesh Public Service Commission subject to condition that their engagement had been made on or before December 31, 2001 and they were in engagement or employment or deployment or working as such on the date of commencement of the Rules of 2016. The other requirement for regularization, which is to be examined possession of requisite qualifications prescribed for regular appointment for the posts at the time the persons concerned were engaged or employed or deployed on daily wage basis.
18. We may notice that while disposing of the earlier writ petition, being Writ-A No.10908 of 2021, the Court had recorded a finding that the petitioners had been engaged prior to the cut off date and that they were working on the date of issuance of the notification i.e. 12.09.2016, in terms of which the Rules of 2016 had been notified, and as such their claims for regularization were required to be considered as per the provisions under the said rules.
19. The aforesaid findings recorded in the earlier round of litigation in Writ-A No.10908 of 2021 are undisputed and are inter partes.
20. In view of the aforesaid, the claims of the petitioners for regularization was to be considered by the concerned State-authorities in accordance with the requirements as set out under the Rules of 2016 and the question with regard to the initial appointments of the petitioners, cannot be said to be a relevant consideration for the same. The observations made, in this regard in the earlier round of litigation between the parties, being Writ-A No.10908 of 2021, are reproduced herein below:-
"The stand taken by the respondents for justifying their action is absolutely in teeth of the rules and virtually frustrates the very object for which the rule itself has been notified. The object of notifying regularisation rules is to grant permanency to those employees in specified establishement who have continued for very long. The cut off date specified in the rules are 31.12.2001 and 12.09.2006 and, therefore, one who becomes entitled to regularised must have worked for this entire period except period of artificial break in service. The right of regularisation once is recognized the rules further contemplate that non availability of posts in such circumstances would not be a ground to deny consideration for regularisation. In order to deal with such exigency Rule 5 provides for creation of supernumerary posts. It is admitted to respondents by way of instructions that such request had been made by the Nagar Panchayat to the State Government.
Whether or not petitioners were appointed against any post created by Nagar Panchayat looses significance inasmuch as in the event it is found that their engagement was not against any post, duly sanctioned by the State, their claim for regularisation will have to be considered as per the Rules of 2016. Once petitioners fulfill necessary ingredients inasmuch as they were engaged prior to cut off date and were working on the date of issuance of the notification i.e. 12.09.2016, their claim shall be dealt with as per law..."
21. Having regard to the facts and circumstances of the case, as noted herein above, we find that the judgment rendered by the learned Single Judge in Writ-A No.13630 of 2023, is based on due consideration of the material on record, and has been passed after recording cogent reasons.
22. We do not find any reason to take a different view.
23. The special appeal lacks merit and is accordingly dismissed.
Order Date :- 8.11.2024
Madhurima
