Hon'ble Ashwani Kumar Mishra,J.
(Delivered by Hon'ble Rajes Kumar, J.) Heard Sri O.P. Gupta, learned counsel for the petitioner and Sri Rakesh Sinha, learned counsel for the respondents.
By means of the present writ petition, the petitioner has challenged the order dated 31.8.2004, passed in Original Application No. 958 of 2004, filed by the petitioner, whereby the claim of the petitioner for his regularization with effect from 3.10.1985 has been rejected.
The brief facts of the case, set up by the petitioner in the writ petition, are that the petitioner was initially appointed as an Assistant Craftsman on 28.5.1978. There is no dispute that he was engaged as a casual labour/daily wager. On account of his illness, he remained absent from 28.8.1989 to 8.11.1990. On 8.11.1990, when he requested to join the duty, he was not allowed to join the duty vide order dated 29.11.1990. The petitioner has been informed that since his services were as a daily wager and post has now been filled and as such his appointment was not possible.
Being aggrieved by the said order dated 29.11.1990, the petitioner filed Original Application No. 349 of 1991.
It is the case of the petitioner that the aforesaid original application has been disposed of by the Tribunal on 10.2.1993 in terms of the order passed in similar matter in Original Application No. 509 of 1991, Lal Manipal Vs. Union of India & others, decided on 14.1.1993. The aforesaid original application has been disposed of with the following directions :
" As such now the respondents are directed to allow the applicant to resume his duty without prejudice taking into consideration any disciplinary action pending against the applicant. In case the applicant is found not guilty and he is allowed to join the duties and the period is to be taken continuously. It will be open for the respondents to decide as to whether he is entitled for the wages during this period or not taking into consideration the respective faults. The application shall be stand disposed of finally in this respect. No order as to costs."
In pursuance of the order of the Tribunal dated 10.2.1993, the Regional Director (Central Area) passed an order dated 12.5.1993 asking the petitioner to join before the Assistant Anudeshak, Gram-Dandi, Post-Bidhauli, Police Station Handia, District Allahabad and submit the report. It is the case of the petitioner that he joined on 23.5.1993. It appears that the petitioner claimed his regularization as an Assistant Instructor and in this regard a letter has been written by the Deputy Director dated 30.11.1993. In reply to the aforesaid letter dated 30.11.1993, Deputy Director wrote a letter dated 1.3.1994 to Deputy Director. The contents of the letter are reproduced herein below :
"To The Dy. Director (CR), O/O DC (H), Lucknow (U.P.).
Please refer to your letter no. 9-33/93-CR dated 30.11.1993 on the above subject. I am directed to convey the approval of Development Commissioner (Handicrafts) for regularization of S/Shri Dashrath Bind, Lal Mani Pal and Sukhram Ram, Asstt. Instructors from the date of their joining duty at C.R. Office consequent upon court directions and they may be paid regular scale of pay from that date.
However, if it is decided that the period of absence needs to be regularized they would get the benefit of continuity of service otherwise the absence will be deemed as a break in service."
In the letter, it has been categorically stated that services have been regularized from the date of joining the duty at C.R. Office. Raising the grievance that though in the seniority list, the petitioner had been placed at serial no. 24 and Sri Meva Lal and Ramroop Maurya were placed at serial nos. 25 and 27, still he was being paid lesser salary, a representation in this regard has been filed on 6.1.1993 before the Development Commissioner. When the same has not been decided, the petitioner filed Original Application No. 82 of 2004 seeking the following reliefs:
"a) Issue a direction commanding the respondents to pay equal salary to the applicant which are paying to Shri Meva Lal and Shri Ramroop Maurya Assistant Instructors who are junior than the applicant.
b) To issue any other suitable and equitable order or direction to the respondents which the Tribunal may deem fit and proper in the circumstances of the present case.
c) To award the cost of the original application to be paid to the applicants throughout."
The original application has been disposed of vide order dated 6.2.2004, asking the respondents to dispose of the representation of the petitioner.
In pursuance thereof, the representation of the petitioner has been decided vide order dated 21/24.5.2004. In the order, it is categorically stated that he has been given fresh appointment as Asstt. Instructor on 24.5.1993, while Sri Mewa Lal and Sri Ram Roop Maurya were engaged as Asstt. Craftsman on 10.1.1977 and 1.7.1978 and their services were regularized on the post of Asstt. Instructors in the year 1990 with effect from 3.10.1985. In respect of the seniority list, submitted by the petitioner, it is observed that it is not a seniority list. The seniority list has been issued by the Department in 1996 and onwards in which his name is below to Shri Mewa Lal and Sri Ram Roop Maurya as they were regularized from 3.10.1985 due to their continuous service rendered as casual worker and they were senior to the petitioner and therefore, claim for parity in pay with Sri Mewa Lal and Sri Ram Roop Maurya was not found admissible. The claim of the petitioner has been decided and has been denied. It would be appropriate to refer paras c, d, e and f of the said order:
"c. However, no disciplinary proceedings to comply the instruction of the Court were initiated and you were given fresh appointment as Asstt. Instructor on 24.5.1993. It is pointed out that Shri Mewa Lal and Sri Ram Roop Maurya were engaged as Asstt. Craftsmen on 10.1.1977 and 1.7.1978 and their services were regularized on the post of Asstt. Instructors in 1990 w.e.f. 3.10.1985. The annexure-1 filed by you showing the list of Assistant Instructor is not a seniority list. The seniority list has been issued by the Department in 1996 and onwards in which your name is below from Shri Mewa Lal and Sri Ram Roop Maurya as they were regularized from 3.10.1985 due to his continuous service in Casual Worker period and are senior to you and therefore your claim for parity of pay w.r.t. Shri Mewa Lal and Sri Ram Roop Maurya is not admissible.
d. Since you remained absent from duty w.e.f. June, 89 and being a Casual Worker your services get automatically terminated. However, as per direction of Hon'ble Tribunal you have again been appointed on the post of Asstt. Instructor w.e.f. 24.5.1993.
e. The list in which you have claimed your seniority above Sri Mewa Lal and Sri Ram Roop Maurya was not a seniority list of Asstt. Instructor, it was the list of casual worker at the time. Later on, on the direction of the Hon'ble Tribunal available Asstt. Craftsman were regularized in the year 1990. However, since you were not in the service at the time, as such your claim for regularization could not be considered.
f. The seniority list of the Asstt. Instructor was circulated by the Department in the year 1996 and onwards in which your position has been shown at Sl. No. 268 as you were re-appointed on 24.5.1993 as per direction of Hon'ble Tribunal."
Being aggrieved, the petitioner filed Original Application No. 958 of 2004, which has been decided by the impugned order dated 31.8.2004. The original application has been rejected. The Tribunal held as follows :
"The applicant, it is alleged, was initially appointed as casual Assistant Craftsman on 28.5.1978. However, in the year 1989 he proceeded on casual leave and remained absent for a long period and subsequently reported for duty on 8.11.1990. The applicant filed OA no. 349 of 1991 which was disposed of vide order dated 10.2.1993 in terms of direction issued in OA no. 509 of 1999 Lal Mani Pal Vs. Union of India & others decided on 14.1.1993. In the said case it was provided that in case the applicant therein was found not guilty, he would be allowed to join duty. The respondents are given liberty to initiate disciplinary proceedings. There was no specific order directing the respondents to allow the applicant to join his duty. It appears that no disciplinary proceeding was initiated due to the reason that the services of the applicant stood terminated due to the reason that he was simply a casual labour. The department, however, issued a fresh appointment order appointing the applicant as Assistant Instructor on 24.5.1993. The applicant accepted the appointment. His claim for seniority from earlier date cannot be accepted.
The claim of the applicant for parity with Mewa Lal and Ram Roop Maurya has been turned down due to the reason that aforesaid persons were appointed as Assistant Craftsman on 3.10.1975 and 1.7.1978 respectively and, therefore, their services were regularized as Assistant Instructor w.e.f. 3.10.1985. The seniority list was published in the year 1996 in which Mewa lal and Ram Roop Maurya were shown senior to the applicant due to their continuous service followed by regularization w.e.f. 3.10.1985. The applicant's claim for seniority over Mewa Lal and Ram Roop Maurya was accordingly turned down and so was his claim in respect of parity of pay. The impugned order dated 21/24.5.2004 (Ann 4) does not suffer from any infirmity warranting interference by this Tribunal."
Learned counsel for the petitioner submitted that the petitioner is working since 1978. As it happened in other case, the petitioner is entitled to be regularized with effect from 3.10.1985. The case of the petitioner is exactly similar to the case of Prabhu Nath Yadav, who was engaged as a daily wager in 1979 and remained absent unauthorizedly from duty with effect from 25.11.1988 to 30.4.1990 and his services have been regularized as Assistant Instructor with effect from 8.8.1994, being aggrieved he filed Original Application No. 1115 of 2002 and in pursuance of the order of the Tribunal dated 27.5.2003 his services have been regularized with effect from 3.10.1985 and the periods from 25.11.1988 to 30.4.1990 have been treated without medical certificate and from 1.5.1990 to 7.8.1994 as leave without allowances. The order of the authority in the case of Prabhu Nath Yadav dated 25.2.2004 is Annexure-7. Claiming the parity with other similarly situated employees, the petitioner's services should also be regularized with effect from 3.10.1985.
Sri Rakesh Sinha, learned counsel for the respondents submitted that in the representation filed before the authority, the claim of the petitioner was that since, in the seniority list, he was placed senior to Sri Mewa Lal and Sri Ram Roop Maurya, therefore, he is entitled for salary equal to Sri Mewa Lal and Sri Ram Roop Maurya. In the Original Application No. 82 of 2004 also he has made the same claim. He submitted that the petitioner has never claimed that his regularization should be considered with effect from 3.10.1985. The petitioner has not challenged the regularization order dated 23/24.2.1995 by which the petitioner has been appointed as an Assistant Instructor with effect from 24.5.1993, which is Annexure-5 to the supplementary counter affidavit. The letter dated 1.3.1994, which has been annexed as Annexure-2 to the writ petition, also reveals that his regularization has been made from the date of his joining duty, which was 23.5.1993. In the said letter, the question of regularization of the period of absence has been left open for further consideration and the benefit of continuity of service has not been allowed at any stage. The order of regularization with effect from the date of joining of duty/fresh appointment with effect from 23.5.1993, referred hereinabove, has not been challenged by the petitioner at any stage. Therefore, it is not open to the petitioner to raise the plea that his services should be regularized with effect from 3.10.1985. He further submitted that at no stage the petitioner claimed parity with the case of Prabhu Nath Yadav, therefore, this plea can also not been entertained at this stage. He further submitted that in the order dated 21/24.5.2004, it is categorically stated that the services of Sri Mewa Lal and Sri Ram Roop Maurya have been regularized with effect from 3.10.1985 and the list on the basis of which the petitioner claimed seniority above them was not a seniority list of Assistant Instructor and it was the list of casual worker at that time. The seniority list of the Assistant Instructor was circulated by the Department in the year 1996 and onwards in which the petitioner has been shown at serial no. 268 as he was re-appointed on 24.5.1993. He submitted that the petition has no merit and is liable to be dismissed.
We have considered rival submissions and perused the record.
We find, that the petitioner has been appointed as Assistant Instructor in Carpet Scheme with effect from 24.5.1993 vide order dated 23/24.2.1995, which is Annexure-5 to the supplementary counter affidavit. Perusal of the letter dated 1.3.1994, which is Annexure-2 to the writ petition, also reveals that the petitioner's services have been regularized from the date of his joining duty, which was 24.5.1993. In the letter dated 1.3.1994, the regularization of period of absence to get benefit of continuity of service has been left open for consideration. Therefore, it is apparent that the service of the petitioner has been regularized or a fresh appointment has been made with effect from 24.5.1993. The petitioner, at no stage, challenged the order dated 23/24.2.1995 or the letter dated 1.3.1994 and the same have attained finality.
In the representation, the petitioner has claimed equal salary paid to Sri Mewa Lal and Sri Ram Roop Maurya on the ground that they were shown juniors to the petitioner in the seniority list. The same relief has also been sought in the Original Application No. 82 of 2004. The respondent-authority has considered the claim of regularization of service of the petitioner and rejected the same on the ground that services of Sri Mewa Lal and Sri Ram Roop Maurya were regularized with effect from 3.10.1985, while the petitioner has been appointed on the post of Assistant Instructor with effect from 23.5.1993. It has been further observed that the list, on the basis of which the petitioner claimed seniority, was the list of casual worker engaged at that time and the seniority list of Assistant Instructor was circulated by the Department in the year 1996 and onwards in which the petitioner was placed at serial no. 268 and the petitioner has been held junior to Sri Mewa Lal and Sri Ram Roop Maurya. The Tribunal has upheld the order dated 21/24.5.2004.
For the reasons stated above, we do not find any error in the order of the Tribunal, which requires interference. The claim of the petitioner, at this stage, that he was entitled to be regularized with effect from 3.10.1985 cannot be entertained for the first time and has no substance in view of the facts stated above.
The submission of the petitioner claiming parity with the case of Prabhu Nath Yadav cannot be entertained. No such claim has been made before any of the authority inasmuch as for the reasons stated above, such claim is liable to be rejected.
In view of the foregoing discussions, the writ petition is devoid of merit and it is, accordingly, dismissed.
Order Date :- 31st March, 2014 OP