Court No. - 36
Case :- WRIT - A No. - 12436 of 2018 Petitioner :- Ram Prakash Saxena Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Swapnil Kumar,Kuldeep Johri Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties.
By means of the present writ petition, the petitioner seeks a writ in the nature of mandamus commanding the respondent no. 3 to consider his claim for regularization on the post of Lab Assistant (or any equivalent post) in the regular establishment of the Irrigation Department of the State of Uttar Pradesh.
It is submitted that the petitioner was appointed on the said post in the work charge establishment as early as on 9.4.1977. He had worked as such till 4.12.1984 when was promoted on adhoc basis on the post of Scientific Assistant. By the order dated 4.7.1992, the petitioner was reverted to the post of Lab Assistant. The reversion order was challenged in a Writ Petition No. 30854 of 1992 (Ram Prakash Saxena vs. State of U.P. and others) wherein an interim order was passed allowing the petitioner to continue on the post of Scientific Assistant. The said writ petition was allowed vide judgment and order dated 20.7.1999.
A perusal of the judgment and order dated 20.7.1999 brought on record shows that the petitioner prayed two reliefs therein. Firstly that the order dated 4.7.1992 be quashed and second relief was to direct to regularise him on the post of Scientific Assistant by giving benefit of Rule 4 of the U.P. Regularisation of Adhoc Promotions (on the post within the purview of Public Service Commission) Rules, 1988 (hereinafter referred to as "the Regularization Rules, 1988") Considering the effect and import of Rule 4 of the Regularization Rules, 1988, this Court has allowed the writ petition with the observation that the petitioner was entitled to the benefits of the said rule inasmuch as, he was admittedly promoted in the year 1984 on the post of Scientific Assistant and had continued as such. The reversion order dated 4th July, 1992 was according, quashed with the said reasoning.
The State respondents being aggrieved, filed a Special Appeal No. 686 of 2000 (State of U.P. and others vs. Ram Prakash Saxena), wherein an interim order dated 2.5.2007 was passed by the Special Appellate Court staying the effect and operation of the judgment and order passed by the learned Single Judge.
The Special appeal was ultimately allowed on 15.4.2008. While setting aside the judgment and order dated 20.7.1999 passed by the learned Single Judge, the matter was remitted back for fresh decision in the light of observations made therein. It was observed by the Special Appellate Court that the learned Single Judge while allowing the writ petition vide judgment and order dated 20.7.1999 had to consider whether the petitioner who was appointed in a work charge establishment was entitled for promotion on adhoc basis to the Scientific Assistant and further whether the said appointment was made against a regular post, in accordance with the Statutory provisions.
It is further evident that after remittal of the matter, the writ petition has been dismissed vide judgment and order dated 22.4.2014 considering both the aforesaid aspects of the matter. It was found by the learned Single Judge that the petitioner was not promoted by the competent authority and his adhoc promotion itself was invalid. He was rightly reverted to his original post by the order dated 4.7.1992. As the adhoc promotion of the petitioner was made in contravention of the mandatory provisions of the statutory rules by ignoring the essential qualifications, the petitioner cannot be regularized in terms of the Regularization Rules, 1988. The judgment and order dated 22.4.2014 has further been challenged in special appeal which was dismissed on 6.9.2017.
At this stage, the petitioner files the present writ petition with the assertion that since the petitioner had continued on the post of Lab Assistant since after his reversion in view of the interim order passed by Special Appellate Court from 2.5.2007 onwards till he attained the age of superannuation on 30.9.2010. In view of the fact that the petitioner has worked in a work charge establishment since after 1977 and has been allowed to retire from the post of Lab Assistant, he was entitled for consideration for regularization on the said post under the Uttar Pradesh Regularistion of Daily Wages Appointment on Group 'C' Posts (Outside the purview of the Uttar Pradesh Public Service Commission) Rules, 1998 as superseded by the Uttar Pradesh Regularisation of Daily Wages Appointments on Group 'D' Posts Rules, 2001 readwith the Uttar Pradesh Regularisation 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.
Submission is that continuity in three Rules for regularization promulgated in the year 1988 and 2001 and finally in the year 2016 has been maintained. The persons who were continuing in the work charge establishment or daily wage basis on the cut-off dates prescribed in the aforesaid Rules were held entitled for consideration. In the case of the petitioner, the cut-off date prescribed is 29.6.1991 and since he was continuously working on the said date, he has a right for consideration for regularization. It is vehemently contended by the learned counsel for the petitioner that the petitioner cannot be deprived of the benefit of regularization only for the reason that he was contesting his claim for regularization on a higher post i.e. on the post of Scientific Assistant.
These submissions of learned counsel for the petitioner do not stand to reason for two reasons; firstly that the petitioner though was working on the post of Lab Technician in a work charge establishment but he was promoted illegally on a higher post in the year 1984. He was, therefore, revered on 4.7.1992 but he was contesting his claim for regular appointment on the promotional post of Scientific Assistant in terms of the Regularization Rules, 1988.
Having lost in the battle of litigation finally in the year 2014, the petitioner cannot take a U-turn to say that his claim for regularization on the post of Lab Technician ought to have been considered by the competent authority. It is noteworthy that the petitioner has retired from the said post after attaining the age of superannuation on 30.9.2010.
In the facts and circumstances noted above, this Court is of the view that there was not occasion for the competent authority to consider the claim of the petitioner for regularization on the post of Lab Technician.
Admittedly, at no point of time, the petitioner put his claim as an alternative plea in the pending petition before this Court.
No such relief was sought from this Court in the pending writ petition when it was dismissed on 22.4.2014. The relief which could have been prayed by the petitioner before the Court in the pending litigation, if not prayed, would be treated to be given up or denied.
For all the above noted reasons, this Court does not find any merit in the submission of the learned counsel for the petitioner to issue a writ in the nature of mandamus commanding the respondents to consider the claim of the petitioner for regularization on the post of Lab Technician.
Dismissed as such.
Order Date :- 29.5.2018 Brijesh