Hon'ble Anant Kumar,J.
(Delivered by Hon'ble Shri Narayan Shukla,J.) Heard Mr.Ramesh Pandey, learned counsel for the petitioner as well as Mr.Shishir Jain, learned counsel for the respondent Nos.1 and 2.
The petitioner has prayed for issuing a mandamus to the respondents to consider his regularization on the post of Assistant Accountant and further to pay arrears of salary of the said post. The petitioner has also assailed the order dated 6 February 2014, passed by the U.P. State Public Service Tribunal, Lucknow.
The petitioner had claimed his regularization on the post of Assistant Accountant on the basis of long officiation on the said post. It was stated that his case was also recommended by the Project Manager for regularization on the post of Assistant Accountant vide letters dated 4.1.1990 and 8.12.1990.
Mr.Shishir Jain, learned counsel for the respondents 1 and 2 has raised objection against the maintainability of the writ petition on the ground that the petitioner had sought the regularization on the post of Assistant Accountant earlier by filing a writ petition being writ petition No.3158 (SS) of 2014 before this Court. This Court vide order dated 7 July 2014 dismissed the writ petition on the ground that the petitioner had earlier approached the State Public Service Tribunal by filing a claim petition being Claim Petition No.2252 of 1995 seeking a direction for his regularization of his service on the post of Assistant Accountant w.e.f. 1.12.1990 and further for payment of salary of the said post with all consequential benefits. The learned Tribunal had allowed the Claim Petition and issued direction to the respondents to consider his case for appointment/regularization on the post of Assistant Accountant. Whereas the petitioner's claim was rejected by the respondents on the ground of non availability of post of Assistant Accountant vide order dated 20.8.2007. Since the department had not considered his case for regularization he had filed a Contempt Petition being Contempt Petition No.41 of 2014 before the Tribunal for compliance of its order, which was dismissed being barred by time, but the order passed by the Tribunal was not challenged. Therefore the learned Single Judge has dismissed the writ petition.
It has been submitted that since the relief sought by the petitioner for regularization as well as for payment of salary against the post of Assistant Accountant had already been dealt with by the learned Single Judge, there is no reason for this Court to entertain the writ petition for the same very relief again. In so far as the order dated 6.2.2016, passed by the Tribunal in Contempt matter is concerned, the learned Tribunal has observed that since no post of Assistant Accountant in general category was vacant, the petitioner could not be appointed and accordingly his representation was disposed of, therefore, there was no error in the order.
Mr.Jain has further submitted that the learned Tribunal vide order dated 17.2.1998 passed in Claim Petition No.2252 of 1995 had allowed the claim petition with direction to the petitioner to accept the appointment on the post of Messenger and the respondents were directed to consider his case of regularization on the post of Assistant Accountant in due course in accordance with Rule in the light of observations made by the Tribunal in the judgment.
The facts of the case reveal that the petitioner being appointed as Messenger was allowed to work as Office Assistant, but there was no order of appointment issued appointing the petitioner as Assistant Accountant. Pursuant to the order passed by the Tribunal, the petitioner was offered the post of Messenger, but he declined to accept it, rather he claimed his appointment directly on the post of Assistant Accountant on the basis of his continuous working as such, whereas he had failed to establish his any kind of appointment on the said post.
That apart, the petitioner had claimed his regularization on the basis of his working for more than ten years on the post of Assistant Accountant in the light of judgment of the Hon'ble Supreme Court rendered in the case of State of Karnataka versus Uma Devi, 2006(4) SCC 1 as well as the order passed by the Coordinate Bench of this Court in writ petition No.267 (SB) of 2011, in which the petitioner was made entitled to be considered for regularization having completed more than ten years of service on ad hoc basis and fulfilling the requisite qualifications and having been appointed on a vacant post on ad hoc basis and continued in service as such. He has further invited the attention of this Court towards the Government Order dated 13 August 2015, whereby Government took a decision to regularize the daily wagers, work charge and contractual employees working in Government departments, autonomous bodies, local bodies till 31 March 1996. He further cited some decisions which are referred as under:-
(1) State of Jharkhand and others versus Kamal Prasad and others, (2014) 7 SCC 223.
(2) State of Karnataka and others versus M.L.Kesari and others (2010) ( SCC 247.
(3) Raj Kishore Shukla and 4 others versus State of U.P.Thru Prin.Secy.Revenue and 6 others, writ petition No.396 (SB) of 2008.
The ratio laid down in the judgments cited above can be considered only in the context of the facts of a particular case. In the case on hand obviously the petitioner was appointed only on the post of Messenger on Muster Roll, but since the date of his appointment he was allowed to work as Office Assistant or Assistant Accountant nevertheless he was paid salary of the post of Messenger. In the case of Uma Devi (Supra) the Hon'ble Supreme Court has permitted one time regularization in the establishments where daily wagers had been working continuously since more than ten years, but it does not mean that on the completion of ten years service each and every daily wager/ad hoc employee shall be entitled to claim his regularization. The observation of Hon'ble Supreme Court was only for those establishments where the daily wagers had been working since long, therefore, the Supreme Court permitted to consider them for their regularization once upon a time. The petitioner has failed to establish his appointment on the post of Assistant Accountant. Therefore, we are of the view that the relief sought by the petitioner is completely based on misconception of facts as well as law.
In the result the writ petition stands dismissed.