1. Heard Sri Mohammmad Tauseef, learned counsel for petitioner and learned State Counsel appearing on behalf of opposite party.
2. The dispute in both petitions being similar in nature are therefore being decided by this common order.
3. Writ Petition No.566 of 2005 had been filed initially seeking a direction to opposite party to regularize services of petitioner on the post of Ayurvedic Medical Officer (Lady). Subsequently, during pendency of petition, petitioners' claim was rejected by means of order dated 04.07.2011, which was therefore challenged by means of amendment.
4. Writ Petition No.1109 (SB) of 2008 was filed subsequently by petitioner no.1 of the earlier Writ Petition, Dr. (Smt.) Shanti Sati Rai, seeking a direction to opposite party for payment of pension and all post retiral benefits treating her as a regular Medical Officer with effect from the date of her initial appointment.
5. As per averments made in the petition, petitioners were appointed as a part time Medical Officer against the sanctioned and vacant posts on 28.10.1986, 15.12.1986 and 08.01.1997 respectively. However, in view of fact that the petitioner nos. 2 and 3 have subsequently being regularized in service, the petition as such is being decided only in terms of petitioner no.1 without any adverse effect upon the service benefits already granted to petitioners no.2 and 3.
6. It has been stated in the petition that after the joining of petitioners, Government Order dated 04.10.1991 was issued providing that all Medical Officers appointed prior to 17.05.1990 would be considered for ad-hoc appointment. When the cases of petitioners were not considered in terms of aforesaid Government Order, they filed Writ Petition No.6528 (SB) of 1992. It has been stated that the aforesaid writ petition was thereafter allowed by means of judgment and order dated 21.03.1996 in which, direction was issued to the opposite party to appoint petitioners on ad-hoc basis, as Medical Officers in Government Dispensary and for consideration of their cases for regularization within a period of six weeks from the date of order. In pursuance to aforesaid directions of this Court, petitioners were issued appointment letter dated 28.05.1996 appointing them as Medical Officers on ad-hoc basis.
7. It has been stated that subsequent to appointment of petitioner on ad-hoc basis, the U.P. Regularization of Ad-hoc Appointment (on posts within the purview of Public Service Commission (third amendment)) Rules 2001 were notified in which it was directed that persons appointed on ad-hoc basis in Government Service prior to June 30, 1998 and continuing in service on the date of commencement of the Rules would be entitled for regularization subject to fulfillment of other conditions. It has been stated that despite the aforesaid Rules, when services of petitioners were not regularized, they were compelled to file the present writ petition, during pendency of which petitioner no.1's claim for regularization has been rejected by means of order dated 04.07.2011 on the ground that she had already superannuated on 30.09.2005 and therefore there was no occasion for consideration of her claim for regularization.
8. In view of fact that petitioner superannuated from service on 30.09.2005, she filed Writ Petition No.1109 (SB) of 2008 seeking a direction to opposite party for payment of post retiral benefits treating her services to have been regularized.
9. Learned counsel for petitioners has submitted that the history of dispute of petitioners with the opposite party clearly indicates the fact that petitioners were entitled to be regularized not only in terms of Regularization Rules of 2001 but also in terms of the judgment and order dated 21.03.1996. It has further been submitted that it is undisputed that petitioners was appointed on ad-hoc basis on 28.05.1996 and had continued in service in the same capacity till her superannuation from service on 30.09.2005. As such, it has been submitted that petitioner was covered under the Regularization Rules and the mere fortuitous circumstance of her superannuation during pendency of Writ Petition would not have any adverse effect thereupon. Learned counsel for petitioner has relied upon judgment rendered by this Court in Surendra Pal Bhardwaj vs. State of U.P & Ors. reported in 2017(35) Lucknow Civil Decision 165.
10. Learned State Counsel appearing on behalf of opposite party has submitted that since record of petitioners were not received from the District concerned therefore her proposal for regularization in service could not be forwarded to the State Government. It has further been submitted that in view of fact that petitioner had already superannuated from service, there cannot be any occasion to consider her case for regularization thereafter.
11. Upon consideration of submission advanced by learned counsel for parties and material available on record, the undisputed facts pertaining to petitioner are that she was granted ad-hoc appointment on the post of Medical Officer vide order dated 28.05.1996 in pursuance of directions issued by this Court on 21.03.1996. It is also undisputed that petitioner continued in service in ad-hoc capacity and superannuated thereafter without any break on 30.09.2005. It is also an admitted fact that even in the judgment and order dated 21.03.1996, this Court had directed opposite party to consider her regularization within a period of six weeks from the date of order. Despite such specific directions, petitioners' case for regularization was not considered by opposite parties.
12. A perusal of the Regularization Rules of 2001 makes it amply clear that petitioner was appointed prior to June, 1998 which was cutoff of date indicated therein. The other condition of continuance in service on the date of commencement of the Rules of 2001 was also fulfilled by the petitioner. Since petitioner had been appointed by opposite parties and continued on the post in question, it is apparent that she fulfills the other eligibility conditions for appointment on the post as well. Nothing to the contrary has been indicated by opposite parties. From the aforesaid facts, it is clear that petitioner otherwise was entitled to be regularized in service in terms of the Regularization Rules 2001. Her candidature for regularization in service has been rejected by means of the impugned order only on the ground that she has subsequently, superannuated and therefore there is no occasion for consideration of her case for regularization.
13. The said aspect has already been considered by this Court in the case of Surendra Pal Bhardwaj (supra) in which this Court has held that since the case of petitioner therein was required to be considered for regularization in terms of relevant Government Orders prior to the date of superannuation, such superannuation would not come in the way of the petitioner's consideration for regularization merely on account of delay occasioned by opposite parties themselves. Reference has been made to judgment rendered by Hon'ble the Supreme Court in the case of Prem Ram Vs. Manging Director, Uttarakhand, Payjal and Nirman Nigam, Dehradun & Ors. reported in (2015)3 U.P.L.B.E.C. 1766 to the same effect. Relevant paragraph of the Judgment are as follows:
"15. As regards the submission of learned Standing Counsel that his juniors have been regularised after the retirement of the petitioner and at that point of time there was no vacant post available, the fact remains that supernumerary posts were created and this Court while disposing of the writ petition on 10th July, 2000 also directed the respondents to consider the petitioner's case for regularisation. So far as the submission of learned Standing Counsel that juniors to the petitioner were regularised in terms of the Government Order dated 21st June, 2012 is concerned, it was in furtherance of the Government Order dated 08th September, 2010, which was issued prior to retirement of the petitioner and the petitioner immediately rushed to this Court by means of Writ Petition No. 8811 (S/S) of 2010, which was disposed of by this Court prior to his retirement on 22nd December, 2010 and a positive direction was issued to the respondents to consider the claim of the petitioner for regularisation. This order of the Court has not been complied with and the petitioner was allowed to retire. Thus, there was no fault on the part of the petitioner. If there was any delay, it was on account of inaction on the part of the respondents who did not consider the case of the petitioner for regularisation in terms of the Government Order dated 08th September, 2010, whereunder supernumerary posts were created, and the earlier order of this Court dated 10th July, 2000, whereby a direction was issued to consider his regularisation in terms of the Rules, 1998.
16. Indisputably, the petitioner's engagement was made prior to cut off date i.e. 29th June, 1991 as provided in the Rules, 1998. Thus, the petitioner was entitled for regularization in terms of the Rules, 1998 as well as the Government Order dated 08th September, 2010.
17. As regards the submission of the learned Standing Counsel that the petitioner has retired, therefore, his case cannot be considered is concerned, the Supreme Court had the occasion to consider this issue in the case of Prem Ram (supra), wherein the Court has held as under:
"9. If that be so, there is no denying the fact that the persons who were junior to the appellant, having been engaged much later than him, steal a march over him in terms of regularization in service while the appellant remained embroiled in litigation over what was eventually found to be an illegal termination of his service. It is true that the appellant has already superannuated. That does not, however, make any difference. What is important is that the appellant had been appointed as early as in the year 1988 and had by the time the decision of this Court in Umadevi's (3) case (supra) pronounced, already completed more than 10 years service. Government has formulated rules for regularization of such daily-wagers, no matter the same are the subject-matter of a challenge before the High Court. What is noteworthy is that neither the State Government nor the Jal Nigam has resented the idea of regularization of those who have served for over a decade. The rules providing for regularization are a sufficient enough indication of that fact. We do not, therefore, see any impediment in directing regularization of the service of the appellant on the analogy of his juniors with effect from the date his juniors were regularized and for the release of all retiral benefits in his favour on that basis by treating him to be in continuous service till the date of his superannuation. We make it clear that this direction will not entitle the appellant to claim any amount towards arrears of salary based on such regularization."
14. Another relevant aspect of the matter is that the opposite parties themselves in paragraph 12 of the counter affidavit had admitted the fact that petitioners' case for regularization could not be considered in time since her service records were not received from district concerned. It has also been stated in paragraph 13 that since records pertaining to the other two petitioners were received in time therefore their services were regularized prior to the superannuation. The aforesaid facts clearly indicate delay on the part of opposite parties themselves in consideration of petitioners' case for regularization. The opposite parties cannot be permitted to take advantage on their own wrong.
15. Considering the conspicuous facts and law indicated hereinabove, it is clear that petitioner was entitled to be regularized in service alongwith the other writ petitioners. Even the impugned order clearly admits the fact that person's juniors to petitioners have been regularized in service although after the date of her superannuation.
16. No other point has been pressed by learned counsel for parties.
17. In view of aforesaid matter, the impugned order dated 04.07.2011 does not stand to reason and is therefore quashed by issuance of a writ in the nature of certiorari.
18. As has been held in the case of Surendra Pal Bhardwaj (supra) it is the duty of Court to balance equity particularly in such a situation where petitioner has been penalized for no fault on her part.
19. In view of the fact that this Court had earlier directed consideration of petitioner's case for regularization as far back as 1996 when she had a good eight years of service left and also since this Court has found the petitioner to be entitled for regularization of services hereinabove as per the cutoff date and further when the opposite parties have not denied her eligibility to hold the post, in order to balance equities, a writ in the nature of Mandamus is issued directing the opposite parties to pass appropriate orders entitling the petitioner for the same service benefits and from the date other petitioners of this Writ Petition, namely Dr. (Smt.) Kiran Kumari and Dr. (Smt.) Shaileja Vidyarthi have been regularized in service. All the relevant consequential service benefits shall also be made available to the petitioner. Orders pertaining to same shall be passed within six months from the date a copy of this order is produced before concerned authority.
20. In view of aforesaid, writ petitions stand allowed with all consequential service benefits including post retiral benefits and pension.
Order Date :- 18.12.2019 Subodh/-