Court No. - 36
Case :- WRIT - A No. - 10387 of 2021
Petitioner :- Pramod Kumar Upreti Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Dhan Pal
Counsel for Respondent :- C.S.C.,Shyam Mani Shukla
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Dhan Pal, learned counsel for the petitioner, Shri Bevendra Pal Singh, learned counsel for the State respondent and Shri S.M. Shukla, learned counsel for respondent no.3.
The petitioner has approached to this Court questioning the validity of order dated 20.06.2020 passed by Nagar Ayukt, Nagar Nigam, Agra-respondent no.3. It is also prayed to command the respondents to reconsider the claim of petitioner for regularisation underUttar Pradesh Regularization of Persons Working on Daily Wages or On Work Charge or On Contract In Government Departments on Group "C" and "D" Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules 2016 (in brevity 'Rules 2016').
Earlier the petitioner has approached this Court by preferring Writ A no.20867/2019 (Pramod Kumar Upreti vs. State of U.P. and others) with the prayer to command the respondent concerned to sanction the post of Computer Operator in Nagar Nigam Bareilly, as per letter dated 12.04.2018, and to regularize his service in accordance with law. The Court has considered the initial engagement of the petitioner w.e.f. 01.10.2000 in the Nagar Nigam, Bareilly and as he continued to work as an employee of Nagar Nigam till 23.07.2012, the petitioner's claim for regularization was directed to be considered in terms of Uttar Pradesh Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group C and Group D Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules 2016 or any other applicable government order, by passing a reasoned order, within stipulated period. For ready reference, the order dated 18.12.2019 is extracted as under:-
"Petitioner has approached this Court for a direction to the concerned respondent to sanction the post of Computer Operator in Nagar Nigam Bareilly, as per letter dated 12.04.2018, and to regularize his service in accordance with law. It is alleged that petitioner was initially engaged as a daily wage employee on 01.10.2000 in Nagar Nigam Bareilly and he continued to work as an employee of the Nagar Nigam till 23rd July, 2012. It appears that on account of a government order issued, the petitioner has thereafter been treated as an outsourced employee on contract basis.
It is stated that petitioner's claim for regularization is liable to be considered in terms of the Uttar Pradesh Regularization of Persons Working On Daily Wages or On Work Charge or On Contract In Government Departments On Group "C" And Group "D" Posts (Outside The Purview Of The Uttar Pradesh Public Service Commission) Rules, 2016. Reliance has also been placed upon the judgment of the Apex Court in Narendra Kumar Tiwari and others vs. State of Jharkhand and others; 2018(8) SCC 238. It is stated that denial of consideration of petitioner's regularization is wholly arbitrary.
Sri Shyam Mani Shukla, learned counsel for the respondent no. 3 states that the claim of the petitioner would be examined in accordance with law.
In the facts and circumstances, noticed above, this writ petition stands disposed of with a direction upon the respondent no. 3 to examine petitioner's claim for regularization with reference to Rules, 2016 or any other applicable government order, by passing a reasoned order, within a period of three months from the date of presentation of a certified copy of this order before him.
In case the third respondent finds that the matter requires consideration at any higher level, it shall be referred to the competent authority, who shall take a decision in terms of the observations made above, within the same period."
Learned counsel for the petitioner submits that the petitioner was initially engaged in Nagar Nigam on daily wage basis w.e.f. 01.10.2000 and continued to work as an employee of Nagar Nigam till 23.07.2012. On account of relevant Government Order, the petitioner has thereafter been treated as an outsourced employee on contract basis. He submits that in most arbitrary manner, the petitioner's claim has been negated on the ground that no post is available in the Nagar Nigam and in absence of any post, the claim of the petitioner could not be accepted, whereas, as per relevant Rules, the petitioner falls under the category of regularization as the appointment of petitioner is prior to cut off date i.e. 31.12.2001 and as the petitioner is continuously working as outsourced employee, it is the utmost responsibility of the respondent Department to regularize the services of the petitioner and provide consequential benefits to him. In support of their submission, he has placed reliance on the judgement passed by Hon'ble the Apex Court in Civil Appeal nos9413-9414 of 2019 Rajnish Kumar Mishra and others vs. State of U.P. and others etc.
Learned Standing Counsel and the counsel, who represents that Nagar Nigam tried to justify the order impugned and submits that in absence of post in question commensurate to the computer operator, no relief can be extended to the petitioner and as such, no interference in required in the matter.
Heard rival submission and perused the record.
Rule 6(1)(A) of Rules 2016 provides that in case an incumbent is working on or before 31st December 2001, as per Clause 3 and 4, he would be eligible for regularization. Admittedly as per communication, which was made by the Nagar Nigam appended as Annexure 5 to the writ petition in response to the earlier correspondence made by the Nagar Nigam to the State Government, wherein, the petitioner's claim finds place at serial no.1 and post was mentioned as Computer Assistant-Group C on contractual basis w.e.f. 01.10.2000. The said document has not been disputed by the respondents while passing the order impugned. While directing the respondents to consider the claim of petitioner, the Court was conscious that admittedly the petitioner was working in the Nagar Nigam as Computer Operator, even the date was also mentioned as 01.10.2000 and as such, direction was issued to consider the claim of petitioner pursuant to Rules 2016. On this score, the entire order impugned is silent.
So far as the objection to the non availability of post is concerned, learned counsel for the petitioner submits that petitioner has never asked to the respondents to sanction group C or D post but the Rules 2016 itself provides for regularization in service as Group C and D workmen, in such a situation, the rightful claim for regularization in Group C post cannot be denied as admittedly the petitioner was working on the cut off date i.e. 31.12.2001 in the Nagar Nigam and still working in the department as Computer Assistant as outsourced employee.
The Hon'ble Apex Court while considering the case in Rajnish Kumar Mishra (supra) has also considered the judgement passed in Secretary, State of Karnataka and others vs. Umadevi and others 2006 (2) SCC 1 and held as follows:-
"16. It is further to be noted that similarly circumstanced employees in the employment of the State of Uttar Pradesh, who were appointed on daily wages/contractual basis had approached the Allahabad High Court praying for regularization of their services. The Single Judge had dismissed the writ petitions which orders were affirmed by the Division Bench. The said employees therein had approached this Court by way of Civil Appeal No.18510 of 2017 (arising out of Special Leave Petition (Civil) No.6183 of 2015) in the case of Sheo Narain Nagar cited supra. It will be relevant to refer to the following observations of this Court in the case of Sheo Narain Nagar (supra):
“The appellants were required to be appointed on regular basis as a onetime measure, as laid down in paragraph 53 of Umadevi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 02.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 02.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today."
17. Another aspect that needs consideration is that during the pendency of the petitions, the Rules with regard to regularization were amended which provided cutoff date of 31.12.2001. Undisputedly, all the appellants were appointed prior to 31.12.2001. The change in position of law ought to have been taken into consideration by the High Court. It is not in dispute that all the appellants were appointed prior to 31.12.2001. Undisputedly, the appellants were continued in services from 01.08.2006 on account of interim orders passed in writ petitions. However, the selection process in which the appellants were permitted to participate, could not see the light of the day, as it was subsequently cancelled in 2008. As such, as a matter of fact, when the appellants’ case was considered for regularization by a Committee under the chairmanship of Additional District Judge, the appellants had, in fact, put in service almost for a period of 12 years.
18. As such, apart from the circular issued by the Registrar General of the High Court dated 05.11.2009, the appellants’ cases were also required to be taken into consideration in view of the exception carved out in the case of Umadevi (supra). We find that the Committee under the chairmanship of the Additional District Judge had rightly submitted its report dated 12.07.2012 and the then District Judge had rightly passed the order of regularization on 09.11.2012 granting regularization from 01.06.2012. We find, that while considering the representation of some of the employees for promotion, the successor in the office of the District Judge could not have annulled the order of the regularization of the appellants which was done after following the proper procedure. The least that was required to be done was to follow the principles of natural justice by giving an opportunity of being heard to the appellants. We find, that the three orders passed by the District Judge dated 16.08.2014 also suffer from violation of the principles of natural justice.
19. In any case, we find that in view of the exception carved out in the case of Umadevi (supra) providing for onetime regularization of employees who have completed 10 years or above; the parity of similarly circumstanced employees who have been granted benefit in the case of Sheo Narain Nagar (supra) and the Rules amended in 2016 which provide a cut off date of 31.12.2001, the appellants are also entitled for regularization of their services.
20. In the result:
(1) the appeals are allowed;
(2) the Judgement and order dated 14.09.2017 passed by the Single Judge of the High Court of Allahabad in Writ Petition No.4813(S/S) of 2014 and Writ Petition No.5530(S/S) of 2014 as well as Division Bench of the said High Court dated 09.07.2018 in Special Appeal No.440 of 2017 and in Special Appeal No.444 of 2017 are quashed and set aside; and (3) the orders dated 16.08.2014 passed by the District Judge, Ambedkar Nagar are quashed and set aside and the consequential order of termination dated 23.9.2017 is also quashed and set aside.
(4) the order dated 9.11.2012 passed by the District Judge, Ambedkar Nagar regularizing the services of appellants with effect from 01.06.2012 is upheld.
(5) Consequentially, the termination of the appellants from their services is quashed and set aside and the appellants are directed to be reinstated forthwith with continuity in service for all the purposes including terminal benefits. However, in the facts and circumstance of the case, the appellants would not be entitled for back wages for the period during which they are out of employment.
21. In the facts and circumstances, there shall be no order as to cost. All pending applications shall stand disposed of."
In view of the aforementioned facts and circumstances, the order impugned cannot sustain and the same is accordingly set aside. The writ petition is allowed. Matter is relegated to the respondent/competent authority to consider the claim of the petitioner for regularization strictly as per Rules 2016 as well as the observations made by this Court and pass appropriate order within two months from the date of production of copy of this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 19.8.2021
A. Pandey