Allahabad High Court
Pawan Kumar Singh And Anr. vs State Of U.P. Thru. Prin.Secy. ... on 6 February, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:7829
Court No. - 5
Case :- WRIT - A No. - 27833 of 2021
Petitioner :- Pawan Kumar Singh And Anr.
Respondent :- State Of U.P. Thru. Prin.Secy. Agriculture Edu. And Ors.
Counsel for Petitioner :- Deep Narayan Tripathi
Counsel for Respondent :- C.S.C.,Uttam Kumar Verma
Hon'ble Abdul Moin,J.
1. Counter affidavit filed today in pursuance to the order of this Court dated 22.01.2025 is taken on record.
2. Learned counsel for the petitioners states that he does not intend to file any objections to the same.
3. The aforesaid statement is record.
4. Accordingly, the Court proceeds to hear and decide the matter finally.
5. Heard learned counsel for the petitioners, learned Standing counsel appearing on behalf of respondent No.1 and Shri Uttam Kumar Verma, learned counsel appearing on behalf of respondents No.2 & 3.
6. The instant petition has been filed praying for the following main relief(s):
"(i) To issue a writ, order or direction in the nature of certiorari quashing the order dated 05.10.2021 and the office memorandum dated 20.06.2008 passed and issued by the respondent No.2, copies of which are annexure 1 & 2 to the petition respectively.
(ii) To issue a writ, order of direction in the nature of mandamus commanding the respondents to consider the regularization of the petitioners in ongoing process of regularization in the University immediately without any further delay.
(iii) To issue a writ, order or direction in the nature of mandamus commanding the respondents to give the benefit of regularization and pay the arrears of regular salary to the petitioners w.e.f. the date the juniors to them have been regularized."
7. There is a consensus at Bar that the facts of the case have already been set forth in detail by this Court in the order dated 22.01.2025.
8. For the sake of convenience, the order dated 22.01.2025 is reproduced below:
"1. Heard.
2. Contention of the learned counsel for the petitioners is that engagement of both the petitioners as Daily Wager was made in October, 1991. Despite they having continued in service for a substantial period of time, their case for regularization has been rejected vide order impugned dated 05.10.2021, a copy of which is Annexure-1 to the petition.
3. Contention is that in pursuance to the order issued by the writ Court in a bunch of writ petition leading being Writ Petition No.4677 of 2020 In Re Merai and Ors. vs State of U.P. & Ors. decided on 16.04.2002, a copy of which is Annexure-5 to the petition, the respondent-University was directed to frame a scheme for regularisation of Class III and Class IV employees, who were working on Daily Wager basis in a phased manner within a period of four months and submit the same before the State Government who was required to take a decision on the scheme submitted by the University within four months thereafter and the respondent-University was required to consider the case of the petitioners for regularization.
4. It is contended that in pursuance to the direction issued by writ court dated 16.04.2002, a scheme was framed on 15.12.2003, a copy of which is Annexure-10 to the petition. The scheme categorically provided the eligibility of the persons who are eligible to be regularized in para 3(1) by indicating that any person who was engaged on daily wage basis in the university before 16.04.1992 and is continuing as such on the date of commencement of the scheme and possesses requisite eligibility for regular appointment would be considered for regularization.
5. Thus, the scheme entailed for regularization of any person who (a) was engaged on daily wage basis in the university before 16.04.1992; and (b) was continuing as such on the date of commencement of the scheme which is 15.12.2003.
6. Subsequent thereto by means of the impugned office order dated 20.06.2008, a copy of which is Annexure-2 to the petition, the University on its own accord has changed the criteria as specified in the scheme more particularly para 3(1)(a) by indicating that those persons who are appointed on daily wage basis before 16.04.1992 and continuing till date and have completed more than 10 years from the date of commencement of scheme and worked for 240 days in each calendar year, their case would be considered for regularization.
7. Contention is that office memorandum dated 20.06.2008 has still not been approved by the State Government, which is sine qua non considering the direction issued by the writ court dated 16.04.2002 and thus it is the scheme as framed on 15.12.2003 more particularly the condition as specified in para 3(1)(a) i.e. having been appointed before 16.04.1992 and continuing on the date of commencement of the scheme 15.12.2003 which would be applicable in the case of the petitioners and as such rejection of the claim of the petitioners by means of the order impugned dated 05.10.2021 by contending that they have not being found fit for regularization is patently misconceived inasmuch as both the petitioners fulfill the twin criteria as specified in para 3(1)(a) of the scheme in force with effect from 15.12.2003.
8. Further contention, as made in para 6 of the petition, is that various persons who have not completed 240 working days in 10 calendar years have been regularized meaning thereby that the respondents themselves are not treating the office memorandum dated 20.06.2008 to be sacrosanct with respect to others but the same is being treated to be sacrosanct so far as the petitioners are concerned and as has been cited to reject the case of the petitioners.
9. Shri Uttam Kumar Verma, learned counsel appearing for the respondent-University prays for and is granted a week's time to file a supplementary short counter affidavit indicating as to whether Office Memorandum dated 20.06.2008 and the changes as proposed to it have been approved by the State Government and as to whether the persons whose names are indicated in para 6 of the petition fulfill the criteria as specified in the office memorandum dated 20.06.2008.
10. As the case has been heard at length, list this case on 30.01.2025 at 2:15 P.M."
9. Learned counsel for the petitioners points out that in the order dated 22.01.2025 the date of appointment of both the petitioners has been indicated as prior to October, 1991 rather the same should be the year 1994 and October, 1991 respectively. It has also been pointed out that the petitioner No.2 has retired in July, 2024.
10. The said dates of appointment be read in the order accordingly.
11. In the counter affidavit which has been filed on the respondents No.2 & 3, it has specifically been indicated in paragraph 6 that the office memorandum dated 20.06.2008 only clarified the terms and conditions as per the preamble of regularization scheme which is duly approved by the State Government and as such, there is no need for further approval of the State Government.
12. From a perusal of the order dated 22.01.2025, it clearly emerges that the claim of the petitioners for regularization has been rejected on the ground that that they do not fulfill the condition for regularization by means of the order impugned dated 05.10.2021.
13. Vide order dated 20.06.2008, a new condition has been introduced in the regularization scheme and the earlier Clause 3(1)(a) of the regularization scheme dated 15.12.2003 has been substituted by Clause 3(a) to read that "any person who has been engaged on daily wage basis in the University on or before 16.04.1992 and continuing till date and has completed more than 10 years the date of commencement of the Scheme and worked for 240 days in each calendar year will be considered subject to availability of post, suitability on the post and fulfillment of the other provision of the regularization of the scheme.
14. It is also contended that the cut-off date i.e. 16.04.1992, as specified in the scheme dated 15.12.2003, has now been made as 31.01.2001.
15. Admittedly, the said condition as substituted by Clause 3(a) has been introduced vide the order dated 20.06.2008 which, as per the averments made in paragraph 6 of the counter affidavit, has not been approved by the State Government.
16. Approval of the State Government was required to the scheme as per the judgment of this Court dated 16.04.2002 in the case of Merai and Ors. (supra) and thus, admittedly, the amended Clause 3(a) has not been approved by the State Government.
17. As already indicated above, the only condition which was required to be seen for regularization was that a person should have been engaged prior to the cut-off date i.e. 16.04.1992, which has now been made 31.01.2001, and continuing on the date of commencement of the Scheme i.e. 15.12.2003 and there was no condition as is sought to be inserted by means of the order dated 20.06.2008 which, as already indicated above, has not been approved by the State Government.
18. The aforesaid insertion, which has sought to be made vide order dated 20.06.2008, is sought to be defended by learned counsel for the respondents on the ground that the preamble of the scheme itself indicated the aforesaid fact.
19. The aforesaid argument of the learned counsel for the respondents is found to be patently fallacious and misconceived inasmuch as, once the respondents in their own wisdom took a decision of not incorporating the said condition while framing the regularization scheme, which admittedly received the approval of the State Government, consequently, there cannot be any occasion for insertion of a condition which does not find place in the original scheme but may be in the preamble, which had been framed by the respondents, inasmuch as, the same would tantamount to changing the scheme itself which changes, as already indicated above, had admittedly not received the approval of the State Government.
20. Learned counsel for the respondents has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kesavananda Bharti vs. State of Kerala 1973 (4) SCC 225 to contend that the preamble of the constitution has been held to be a part of the Constitution.
21. The aforesaid argument is found to be patently fallacious and misconceived inasmuch as there cannot be any parity of a scheme, which has been framed by the University, with that of the Constitution of India. Thus, the said argument is rejected.
22. Keeping in view of the aforesaid discussion, the writ petition is allowed. The order dated 05.10.2021 and the office memorandum dated 20.06.2008, copies of which are annexures 1 & 2 to the petition respectively, are quashed. The respondent(s)-University is directed to consider the claim of the petitioners for regularization strictly in accordance with the scheme dated 15.12.2003 with effect from the date their juniors were regularized. Let such consideration be done within a period of six weeks from the date of receipt of a certified copy of this order.
Order Date :- 6.2.2025
S. Shivhare
