Court No. - 34
Case :- WRIT - A No. - 48988 of 2002 Petitioner :- Mahesh Respondent :- State Of U.P. And Others Counsel for Petitioner :- D.S. Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri D.S.Srivastava, learned counsel for petitioner, learned Standing Counsel for respondents and perused the record.
2. The petitioner was engaged on daily wage basis in Forest Department in 1982. He was allowed minimum pay scale, as admissible to regular employees, in the light of Supreme Court judgment in State of U.P. and others Vs. Putti Lal, 2002 (2) UPLBEC 1595 but thereafter when he claimed regularization, the same was rejected by impugned order dated 01.11.2002 and also benefit of minimum of pay scale has also been denied though petitioner is continuously working. Regularization has been denied on the ground that petitioner has not continuously serving in the department.
3. It is not in dispute that petitioner was engaged on daily wage basis in 1982 and on the date of commencement of U.P. Regularization of Daily Wages Appointment on Group “D” Posts Rules, 2001 (hereinafter referred to as “Rules, 2001”), he was continuing.
4. The question, whether a daily wager need be continuously working has already been considered by this Court in Janardan Yadav vs. State of U.P., 2008(1) UPLBEC 498 and relevant extract of judgment dealing with issue in question reads as under:
"3. Learned counsel for the petitioner submits that the impugned order is totally illegal and has misapplied Rule 2001 inasmuch the only requirement to attract regularization under Rules 2001 are those conditions as provided under Rule 4(1), but the respondents in rejecting the claim of the petitioner have incorporated a condition which did not exist in the said Rules.
4. The respondents have filed counter affidavit wherein the facts as stated are not disputed, but it is said for the purpose of attracting regularization under Rules 2001, one must have worked continuously throughout and the only break permissible is holidays and not otherwise. In this view of the matter, it is said that the claim of the petitioner has rightly been rejected.
5. Since the facts are not is dispute and it is also not disputed that the petitioner was engaged on daily wage basis in 1984, i.e., before 29.6.1991 and was also working on the date of commencement of Rules 2001, i.e, on 21.12.2001, thus it is evident that he was entitled to be considered for regularization under the said Rules. The only question up for consideration is whether the said Rules require continuous service throughout, i.e., from the date of initial engagement till the commencement of the Rules. In my view, there is no such requirement under the Rules as is apparent from perusal thereof. Rule 4(1) of Rules 2001 is reproduced as under:
"4. Regularisation of daily wages appointments on Group ''D' posts.- (1) Any person who-
(a) was directly appointed on daily wage basis on a Group ''D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and
(b) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''D' post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders."
6. The only requirement under Rule 4(1)(a) are that the incumbent was directly appointed on daily wage basis on a Group 'D' Post in a Government Service before 29.6.1991 and is continuing in service as such on the date of commencement of the said Rules. The further requirement under Clause (b) of Rule 4(1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis.
7. Respondents have not disputed the existence of all the said three conditions but their further presumption is that the Rules also contemplate continuous service throughout from the date of initial engagement till the date of commencement of the Rules and only then a person appointed on daily wage basis would be entitled for regularization. It is also the stand of the respondents, which is evident from para-20 of the counter affidavit, which reads as under:
"20. That the contents of para 23 of the writ petition is not correct and denied. As stated the petitioner is continuously working relates to, the working of a daily wager without any break as there is no break mentioned in the regularization rules. The petitioner or a daily wager has to work through out year except on the national holiday."
8. The said stand is contrary to the Rules and it amounts to reading certain words in Rule 4(1) which is not provided therein by the Rule framing authority. The rule framing authority has not framed the aforesaid Rules in manner as are being read by the respondents. Since the Rules are applicable only to daily wage employees, the Rules framing authority was aware that such employee could not have worked continuously throughout and, therefore, has clearly provided that the engagement must be before 29.6.1991 and he is continuing as such on the date of commencement of the Rules. If a daily wage engagement has been made before 29.6.2001 and was continuing on 21.12.2001, meaning thereby the daily wage engagement remained necessity of the department or the requirement thereof for more than 10 years, for such a person only, the benefit of regularization under 2001 Rules has been provided, and it nowhere requires further that the incumbent must have worked continuously from the date of initial engagement till the commencement of these Rules and to read these words would amount to legislation, which is not permissible in law. While interpreting the statute, it is well settled that neither any word shall be added nor be subtracted but if a plain reading of the statute is clear and unambiguous, the same has to be followed as such. This Court does not find any ambiguity in Rule-4(1) providing as to which kind of persons would be entitled for regularization and it nowhere requires that the incumbent must have worked throughout from the date of initial engagement till the date of commencement of the Rules.
9. In the result, the writ petition succeeds and is allowed. The impugned order 10.9.2004, Annexure-5 to the writ petition, is quashed. The respondents are directed to re-consider the case of the petitioner for regularization in accordance with 2001 Rules and the observations made hereinabove, afresh, and pass appropriate order within three months from the date of production of certified copy of this order."
5. For the reasons stated in above judgment, view taken by authority concerned in erroneous.
6. So far as grant of minimum pay scale as applicable to correspondent Group 'D' employees, who are regularly appointed is concerned, learned counsel for petitioners submitted that issue raised in this petition is squarely covered by this Court's judgment dated 11.01.2019 passed in Writ A No.33864 of 2003 (Rakesh Shukla vs. Principal Secretary, Forest and others). Operative part of aforesaid judgment reads as under :-
"28. So far as payment of wages at the minimum of pay scale is concerned, in view of the stand taken by respondents, I have no manner of doubt that so long as petitioner continues to be employed as daily wager, he will be entitled for payment of salary at the minimum of pay scale applicable to regular employees of corresponding status and if it is not being done respondents are directed to make payment accordingly without any further delay and arrears shall be paid within two months from the date of production of a certified copy of this order.
29. Writ petition is partly allowed in the manner as said above.
30. No costs."
7. In view thereof writ petition is allowed. Impugned order dated 01.11.2002 (Annexure 5 to the writ petition) is set aside. Respondents are directed to make payment of salary to petitioner at the minimum of pay scale applicable to regular employees of corresponding status so long as petitioner continues to be employed as daily wager. Respondents are also directed to reconsider him for regularization in accordance with aforesaid observations and under Rules, 2001 and pass a fresh order within a period of three months from the date of production of a certified copy of this order.
Order Date :- 22.2.2019 KA