Heard Sri Qamrul Hasan, learned Counsel for the petitioner and learned Standing Counsel for respondents.
Aggrieved by the order dated 12.5.2010 passed by the Director General (opposite party no.2) whereby claim of the petitioner, who is a daily wager, has been rejected mainly on the ground that the petitioner was not engaged against any sanctioned post of Chowkidar and as such his service cannot be regularized.
This case has very peculiar history and is a very hard case where the petitioner, admittedly, was engaged as a daily wager in the year 1990 is continuously fighting for his legitimate claim of regularization in view of the Regularization Rules and Government Orders issued in this behalf, which infact has been denied on one pretext or the other despite orders of this court, which is highly unjust and arbitrary.
According to the learned Counsel for the petitioner, the petitioner had earlier approached this court by filing writ petition no. 2001(SS) of 2003 for a direction to respondents to consider his candidature for regularization in accordance with U.P. Regularization of Daily Wager Employees (Group D) Service Rules, 2001. The said writ petition was disposed of vide order dated 13.11.2009 with the direction to the competent authority to consider the case of the petitioner for regularization in accordance with Rules within the period prescribed therein.
Learned Counsel for the petitioner has vehemently asserted that there was no direction in the order dated 13.11.2009 for consideration of representations of the petitioner rather the Court had directed to consider the petitioner's candidature for regularization of his services as per 2001 Rules. However, the respondents in a very mechanical manner considered the representation and disposed of the same vide order dated 22.2.2010.
Being dis-satisfied with the aforesaid order dated 22.2.2010, passed by the Director-General, PRD/PVD Evam Yuwa Kalyan, Uttar Pradesh, Lucknow, the petitioner was constrained to file another writ petition bearing no. 1823 (SS) of 2010 assailing the said order. Again the said writ petition no. 1823(SS) of 2010 was disposed of with the direction to respondent no.2 to re-consider the case of the petitioner for regularization in the light of the observations made in the order dated 13.11.2009 passed in Writ Petitioner No. 2001(SS) of 2003.
The tail of woe of the petitioner did not end here as instead of regularizing service of the petitioner in accordance with the provisions of 2001 Rules and Government Orders issued from time to time prescribing the cut off date, the claim of the petitioner has been rejected once again by the order impugned in the present writ petition dated 12.5.2010.
Learned Counsel for the petitioner has contended that the impugned order is wholly unjust and arbitrary and shows the colourable exercise of powers vested in the authorities as the petitioner who had served the department for several long years has been denied his claim of regularization on flimsy grounds that there is no sanctioned post of Chowkidar and the engagement/appointment was made without any selection process. This stand of the respondent is wholly illegal as the petitioner is entitled for regularization under 2001 Rules whereas 2001 Rules clearly stipulates that an employee, who had been appointed as daily wager on Group D post before 29.6.1991 and is continuing on his post on 21.12.2001, is fully eligible and entitled for regularization.
It has also been contended by the learned Counsel for the petitioner that in identical situation, this Court has passed the judgment and order dated 18.9.2015 in Writ Petition No. 4052(SS) of 2014 wherein it has been held that an employee, who had been appointed as daily wager on Group D post before 29.6.1991 and was continuing on his post on 21.12.2001, is fully eligible and entitled to be considered for regularization. Therefore, denial of regularization to the petitioner is wholly unjustified and in breach of the provisions of the aforesaid Rules.
Lastly, learned Counsel for the petitioner submitted that in order to circumvent and frustrate various orders passed by this Court as well as the order dated 27.12.2013 of the State Government, firstly petitioner was denied wages as admissible to him and later on, he was prevented from discharging his duties without any written orders with a sole motive to deny regularization to the petitioner, which shows the mala-fide and bias attitude of the concerned authority, who has shown scant respect to the orders passed by this court and his acts also fall in the category of insubordination as he also did not comply the order of higher authorities i.e. State Government dated 27.12.2013.
In contrast, learned Standing Counsel has submitted that the petitioner was engaged in exigency of work on a Class IV post i.e. Volunteer and was being paid allowances admissible to him in accordance with the Government Orders issued from time to time. It has also been stated in the counter affidavit though the post of Chowkidar is not sanctioned by the State Government at Gymnasium, Sultanpur, however, the then District Youth Welfare and Provincial Vikas Dal Adhikari appointed the petitioner as Chowkidar without there being any post with the condition that the appointment of the petitioner is temporary and no lien will accrue to the petitioner in pursuance of of the said appointment. It has also been argued that that the matter of the petitioner is not covered by the 2001 Rules and as such he is not entitled for any relief as sought for by him.
Having considered the submission, made by the parties and perused the material on record, there is no quarrel on the point that the petitioner was engaged by respondents way back in the year 1988. Annexure-7 to the petition is the appointment order dated 8.3.1990 issued by the opposite party no.3 appointing the petitioner on the post of Chowkidar. The respondents in paragraph 15 of their counter affidavit filed November, 2010 has admitted issuance of the aforesaid appointment order but has stated that there is no such sanctioned post of Chowkidar and as such the engagement was illegal.
At this juncture, it would also be relevant to point out that earlier respondents had filed counter affidavit in Writ Petition No. 7793 (SS) of 1991 filed by the petitioner, where in paragraph 10 of the writ petition , it has been stated that the petitioner was appointed as Chowkidar vide order dated 8.3.1990 of the ADM Sultanpur at Stadium (Near Harijan Hostel) and his services were fully temporary and on daily wages. Petitioner has annexed a copy of the order dated 10th June 2013 issued by the Director General whereby number of daily wagers working on class IV post falling in General, Reserved and Handicapped category were regularized and granted pay scale of Rs. 5200-20200 + pay band of Rs. 1,800/-. It appears from the record that earlier when this court directed for considering the candidature of the petitioner for regularization, the State Government i.e. Secretary, Yuwa Kalyan Vibhag issued specific order dated 27.12.2013 to the opposite party no.2 for complying the court's order and to take decision on regularization of the petitioner.
At this juncture, it would be useful to point out that the petitioner was engaged in the year 1988 and is litigating for his right to be regularized in service since last twenty years as the State Government has issued orders and framed rules for regularization of daily wagers from time to time but on account of lackadaisical attitude of the authorities, such a benefit was not extended to the petitioner. The Apex Court, while considering the sufferings of such employees/daily wagers, noticed in the case reported in 1991 Supplementary (Vol-I) SCC 600 Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others, which reads as under:
"The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired."
The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them."
There is need to minimize the scope of arbitrary use of power in all walks of like. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of individual whims and fancies. It may be added that daily wagers are appointed in exigencies of work and not against any substantive vacancy after due selection process.
It may further be pointed out that a seven Judge Bench decision of the Apex Court in Maneka Gandhi vs. Union of India and anr.; AIR 1978 SC 597, has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated.
In Raja Ram Pandey vs. The State of U.P.; 2009(27)LCD 771 this Court held as under"
"Right to consider for regularization is a fundamental right. However, when the regularization is done in order of seniority subject to fitness, then supersession of seniors on unfounded grounds is an arbitrary act and is also violative of Arts. 14 and 21 of the Constitution of India. In case the petitioner was qualified for regularization, then denial of regularization by respondents against regular vacancy is a highly arbitrary act and violative of Article 14 of the Constitution of India."
In Ishwar Deen vs. State of U.P.(2008(26) LCD 1134; this Court while considering provisions of Regularization Rules of 2001 held as under:-
"Though, the State has got right to fill up vacancies through direct recruitment but while doing so it shall always be necessary for the State to Exercise the statutory power conferred by the Rules (supra) to consider the cases of the employees, who are serving in the department like in the present case for about two deceased or more. Needless to say that the Rules framed under Article 209 of the Constitution of India have got statutory force and one Rule 4(a) of the Rules enable the authorities to consider the cases of the employees for regularization who were appointed prior to 29.6.1991, then it shall always be incumbent upon the authorities to exercise power in just and fair manner to consider the case of the employees for regularization."
After scrutiny of records, there is no quarrel on the point that the petitioner was engaged on 8.3.1990 by the respondents but his services have yet not been regularized despite orders of this courts on the wrong interpretation. It may be clarified that the requirement under the the 2001 Rules is that an incumbent was directly appointed on daily wage basis in a government service before 29.6.1991 and is/are continuing in service as such on the date of commencement of the said Rules. The further requirement under the Rules is that the person must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis.
It is also relevant to mention that this Court in the case of Janardan yadav vs.State of U.P. [(2008) 1 UPLBEC 498, held that 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. In the situation, such a stand of the State that the employee had not worked continuously or there are breaks in service, would be contrary to the Rules and would amount to adding and reading certain words in Rule 4(1) which have not been inserted by the legislature. As the rules are applicable only to daily wage employees, the Rules framing authority was well 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 Rule.
Needless to observe here that recently the State Government has issued a Government Order dated 13.8.2015 whereby it has been provided that persons working on daily wage/work charge/contractual basis in the department of the State Government, its autonomous bodies, public undertakings/ local bodies, development authorities and Zila Pancahyat, who were engaged upto 31.3.1996 shall be regularized. In these circumstances, there is no justification in not regularizing the service of the petitioner when it is an admitted fact that the petitioner was engaged as daily wager before 29.6.1991 and he was continuing on the post on 21.12.2001 and even thereafter.
A perusal of the impugned order dated 12th May, 2010 reveals that there is no sanctioned post of Chowkidar and the petitioner was engaged without there being any such post, therefore, the petitioner cannot be regularized on the post of Chowkidar. In these circumstances, the petitioner has not been found eligible to be regularized. To substantiate his assertion, the petitioner has annexed a copy of Karya Karam Pustika of 2001 as Annexure-12 to the writ petition with respect to his engagement In which also under the heading "Store Arrangement", the name of the petitioner has been shown as "Da. Chowkidar".Therefore, it is highly difficult to accept the assertion of the respondent that the petitioner was engaged as Volunteer. Furthermore, the petitioner has asserted that as per Rule of United Provinces Rakshak Dal Rules, declaration has not been issued declaring the petitioner as Volunteer, as when a person is enrolled under Rule-5, the Enrolling Authority shall complete Form-II which shall be known as the Recruitment Certificate. The said assertion has not been repelled by the respondents by bringing any document on record. It may be added that the stand of the department is that the petitioner was engaged as Volunteer and the order dated 8.3.1990 issued by the opposite party no. 3 engaging the petitioner as a Chowkidar is not a valid order but there is no whisper in any affidavits filed by the respondent that the said order dated 8.3.1990 being invalid order has been cancelled or rescinded by the competent authority. Therefore, the contention of the petitioner has no legs to stand and is rejected.
It would be also relevant to point out that a learned Single Judge of this Court while disposing of the writ petition no. 2001(SS) of 2009 filed by the petitioner vide judgment and order dated 13.11.2009 had observed that the opposite parties in the earlier counter affidavit had admitted that the petitioner was appointed as Chowkidar. The Order dated 8.3.21990 reveals that District Youth & Welfare Officer, Sultanpur had issued the said order after due approval of Additional District Magistrate. In my considered opinion, findings recorded by the learned Single Judge in its aforesaid judgment and order dated 13.11.2009 had attained finality as learned Standing Counsel failed to point out that these findings have been upset/altered/modified subsequently.
At this juncture, it may be added that it is the onerous duty of authorities to act in a fair and transparent manner, which is an essence of action of State Authorities. The petitioner, who is litigating for his legitimate rights since last twenty years, cannot be denied in a mechanical manner or by twisting the facts just to mislead this Court. The engagement of petitioner as daily wager as a Chowkidar is not disputed but it is said that there is no sanctioned post of Chowkidar. In this regard, it would be relevant to mention that recently the State Government vide order dated 13.8.2015 has provided that in the event post is not available, then for creating necessary post, necessary steps be taken for creating post and thereafter an incumbent shall be regularized, if he was working on the cut of date i.e. 31.3.1996. Now, recently the State Government vide government order dated 24th February, 2016 has changed the cut of date to 31.12.2001 and has again provided that if the post is not available then necessary steps be taken for creation of the post. Therefore, the stand of the department that there is no post of Chwokidar is no more available to them.
In view of the aforesaid discussion, the impugned order dated 12.5.2010 passed by the Director-General/opposite party no.2 contained in Annexure-1 to the writ petition cannot be sustained as it suffers from various infirmities and consequently, is hereby quashed. A writ of Mandamus is issued to the respondents to consider the claim of the petitioner for regularization under the U. P. Regularization of Daily Wages Appointments on Group 'D' Rules, 2001 read with Government Orders dated 13.8.2015 and 24.2. 2016 within a maximum period of three months from the date of presentation of a certified copy of this order. The order shall also be communicated to the petitioner.
With the aforesaid observations and directions, the writ petition is allowed. Parties to bear their own costs.
Date : 26 April,2016 Ajit/-