Court No. - 35
Case :- WRIT - A No. - 52033 of 2017 Petitioner :- Jairam Gupta Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Dharm Prakash Mishra
Hon'ble Vivek Agarwal,J.
1. Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri Pranav Ojha, learned Additional Chief Standing Counsel for the State.
2. This writ petition has been filed seeking quashing of order dated 25.09.2017 passed by the Additional District Magistrate (Finance and Revenue), Deoria, Annexure-8 to the Writ Petition, rejecting petitioner's representation claiming regularization on the post of 'Collection Amin'.
3. Fact of the matter is that petitioner was appointed as 'Collection Amin' in the year 1984 in substitution of his father, when he was ill, for a period of 15 days. He continued to work alongwith his father, but without any regularization. In 1989, he filed a writ petition i.e., Civil Misc. Writ Petition No. 6226 of 1989. In this writ petition, interim order was granted on 07.04.1989 asking the respondents to continue the petitioner in service. This writ petition was dismissed vide order dated 04.02.2005 with an observation by Hon'ble Single Judge that 'the entry of the writ petition was not proper or in accordance with some rules, he could not be regularized, however, long the service de-facto might be'.
4. Petitioner had filed Special Appeal No. 361 of 2005 challenging order dated 04.02.2005, which was disposed off by a Division Bench of this High Court vide order dated 01.04.2005 wherein the Hon'ble Division Bench observed as under:-
"We find that because of the interim order, the writ petitioner-appellant has received the benefit of service and service emoluments for a long period. But that a person has received for long benefit does not necessarily mean that he is tot receive further benefit.
In our opinion, the facts of the case require that the writ petition appellant's representation for regularization dated 24th January 1984 (Page 47 of the papers before us) be considered. We order to that effect. Save for such an order and direction, the appeal is to be taken as dismissed."
5. Thereafter, the Hon'ble Division Bench further observed that the observation made by us or the learned Judge in the court below will not prevent the respondents from giving employment to the appellant if he is meritorious, entitled in any manner, similarly, none of the order or observation made by us, will prevent the respondents from dismissing the representation of the appellant and in the aforesaid terms, disposed of the appeal finally.
6. In terms of the aforesaid, petitioner had move an application for regularization on 25.01.2017 through the President of Rajaswa Sangrah, Amin Sangh, U.P., following by reminder dated 08.08.2017, on which, impugned order dated 25.09.2017 has been passed.
7. Learned counsel for petitioner has placed reliance on the provisions contained in U.P. Regularization of Ad-hoc Appointments (On Post Outside the Purview of Public Service Commission) Rules, 1979 and other which have been promulgated from time to time being the last Amendment of 2001, claiming that services of the petitioner should have been regularized, but this aspect has been overlooked by the Additional District Magistrate, Deoria.
8. Reliance is placed on an order of a Coordinate Bench dated 26.11.2020 passed in Writ A No. 60602 of 2016 (Shri Ram Yadav vs. State of U.P. and 2 Others) whereby placing reliance on the decision of one Narsingh Mall vs. State of U.P. and 2 Others passed in Writ A No. 31326 of 2016 dated 11.12.2017, the Coordinate Bench directed that the petitioner in that writ should be treated to be regularized on the post of 'Collection Amin' under the 3rd Amendment Rules, 2001.
9. Learned Additional Chief Standing Counsel for the State submits that ratio of law laid down in case of Narsingh Mall (supra) or that in case of Shri Ram Yadav (supra), is not applicable to the facts and circumstances of the present case, inasmuch as, petitioner's earlier Writ Petition No. 6226 of 1989 was dismissed holding that petitioner was not entitled to the relief in terms of the Rules and could not have been regularized, however, long the service de-facto might be. This view was upheld by a Division Bench in Special Appeal No. 361 of 2005, therefore, merely some liberty was reserved in favour of the petitioner, then that will not create a vested right in the petitioner. Secondly, case of Shri Ram Yadav (supra), has been considered in terms of the provisions contained in the U.P. Regularization of Ad-hoc Appointments (On Post Outside the Purview of Public Service Commission) (3rd Amendment), Rules, 2001.
10. After hearing learned counsel for the parties and going through the record, it is evident that firstly, petitioner is not an ad-hoc employee, secondly, provisions of 3rd amendment will not be applicable to him, as has been specifically mentioned in the impugned order and thirdly, in case of Shri Ram Yadav (supra), rejection was made by the District Magistrate under the Rules of 1974, as amended by 7th Amendment of 2015 on the ground that 35% quota prescribed under the Rules for 'Seasonal Collection Amins' was already full by 25.07.2016, whereas in the present case, claim of the petitioner has not been ousted on the ground of non-availability of quota either under the 3rd or 7th Amendment, but on the ground that petitioner started his work under the stop gap arrangement for a period of 15 days during the illness of his father and therefore, for a short illness of his father, petitioner was not entitled to claim any lien or right over the post, especially, when his father-Madan Lal Gupta, continued to work in the Government and was appointed as 'Naayab Tehsildar' vide order Annexure-1.
11. Thus, petitioner's appointment was neither ad-hoc nor compassionate and therefore, there being no legalized source of employment, this writ petition was correctly dismissed vide order dated 04.02.2005, so also the Special Appeal vide order dated 01.04.2005.
12. Thus, it is evident that petitioner was never appointed on the sanctioned vacant post and therefore, merely continuing on the basis of some interim orders of the court, petitioner is not entitled for regularization in terms of the Regulation of 1974, as amended from time to time and the ratio of law laid down in case of Shri Ram Yadav (supra) or in case of Narsingh Mall (supra), is not available to the petitioner and even otherwise, the Supreme Court has deprecated the practice of the courts directing regularization of casual workers in case of Secretary, State of Karnataka vs. Umadevi; (2006) 4 SCC 1 and rejected the arguments that the irregular appointees had a legitimate expectations of being regularized invoking Article 21 of the Constitution of India. In case of Umadevi (supra), the Supreme Court held that the court cannot direct regularization of employees in absence of the sanctioned post and can only direct the concerned Government to consider their cases, as and when such posts are made available or are created by the Government.
13. In view of such facts, when tested, then impugned order cannot be faulted with, therefore, petition deserves to be dismissed and is dismissed.
Order Date :- 29.9.2021 Vikram/-R