Heard learned counsel for the petitioner and learned Additional Chief Standing counsel appearing for the State-respondents.
At the very outset, learned counsel for the petitioner contends that he does not intend to file any rejoinder affidavit and the matter may be heard and decided finally.
By means of the present petition, the petitioner has prayed for quashing of order dated 22.01.2019, a copy of which is annexure 1 to the writ petition passed by the respondent no. 2 i.e Special Secretary and Rajya Sampatti Adhikari, Rajya Sampatti Anubhag-5, U.P., Lucknow. A further prayer is for a mandamus commanding the respondents to reconsider the candidature of the petitioner strictly in accordance with the provisions of regularization rules, 2016 and to make payment of minimum of pay scale along with dearness allowance as per directions issued by the Apex Court.
Learned counsel for the petitioner contends that through an order dated 11.11.2020 , the respondents are now paying the minimum pay scale to the petitioner and thus even the relief prayed for in the present petition to that extent does not survive.
Learned counsel for the petitioner contends that the petitioner was initially engaged on 24.04.1999 on daily wage basis. In August, 2002, he was stopped from working with the result that he preferred a writ petition before this Court in which an interim order dated 11.10.2002 was passed on the basis of which the petitioner was permitted to continue in service and since then he is regularly working.
It is further contended that the State has issued the rules namely 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 (hereinafter referred to as 'Rules 2016') which provide for regularization of such persons who are working on daily wage or work charge or contract basis on Group C and Group D post on or before 31.12.2001 and are still engaged on the date of promoulgation of rules i.e 12.09.2016. It is contended that in pursuance to the Rules, 2016, the petitioner staked his claim for regularization which has been rejected by the respondents by means of the impugned order dated 22.01.2019. The grounds for rejection, as come out from a perusal of the said order would be that though the petitioner was engaged prior to 31.12.2001 yet as he has not remained in continuous employment till the date of promulgation of the Rules, 2016, as such he cannot be considered for regularization.
Learned counsel for the petitioner contends that once the Rules, 2016 themselves do not provide for any continuous service since 2001 till the date of promulgation of the rules, consequently nothing more can be read in the rules and as such, the rejection of claim of the petitioner on the ground of there being no continuous service would run contrary to the rules and consequently, the impugned order merits to be set aside.
On the other hand, learned Additional Chief Standing counsel on the basis of averment contained in the counter affidavit argues that certain persons along with the petitioner was engaged in the year 1990-1991 as daily wage employee on Class IV as per the requirement of the work and thereafter they were dis-engaged. Subsequent thereto, again the petitioner was permitted to work since 24.04.1999 in the Guest House at Gautam Palli, Lucknow but again his service were dispensed with vide order dated 04.01.2002. Being aggrieved, the petitioner filed Writ Petition No. 5933 (SS) of 2002 in which an interim order dated 11.10.2002 was passed and in pursuance thereof, the services of the petitioner were engaged w.e.f 26.05.2008. The said writ petition was dismissed with the result that since October, 2018, the payment of wages of petitioner was stopped and again through an order dated 05.12.2019, the petitioner was re-engaged on daily wage basis and still continuing to work.
Learned Standing counsel argues that Rule 6 of the Rules, 2016 provide that a person is to be working on the date of promulgation of the rules and once there is also a condition of engagement on or before 31.12.2001, consequently the same would entail continuous working since 2001 till the date of promulgation of the rules which the petitioner does not fulfill and as such, there is no infirmity in the impugned order of rejection by which the claim of the petitioner for regularization has been rejected.
Heard learned counsel appearing for the contesting parties and perused the records.
From a perusal of the impugned order dated 22.01.2019 it comes out that the respondents have admitted that the petitioner had been appointed on 24.04.1999 meaning thereby that he was in engagement on or before 31.12.2001. It has also been contended in the impugned order that though the services of the petitioner was disengaged in the year 2002 yet again he was reinstated in the year 2008. His wages were stopped in October, 2018 yet thereafter, the petitioner was re-engaged vide order dated 05.12.2019 and is still continuing. Thus, it is apparent that the petitioner was in service on the date of promulgation of the rules i.e 12.09.2016.
Rule 6(1) of 2016 Rules for the sake of convenience is reproduced below:-
"6. (1) Any person who-
(i) was directly engaged or employed or deployed or working on daily wages or on work charge or on contract in a Government Department on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) on or before December 31, 2001 and is still engaged or employed or deployed or working as such on the date of the commencement of these rules; and
(ii) possessed requisite qualifications prescribed for regular appointment for that post at the time of such engagement or employment or deployment on daily wages or on work charge or on contract, under the relevant service rules and, subject to the provisions of above mentioned rules 2 and 5, shall be considered for regular appointment on Group 'C' or Group 'D' post (outside the purview of the Uttar Pradesh Public Service Commission) in permanent or temporary vacancy as may be available on the date of the 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."
A perusal of the impugned order would indicate that the respondents have not indicated that the petitioner is not qualified for being regularized on the said post rather the only ground of rejection is that he was not in engagement continuously from 31.12.2001 to 12.09.2016. As already indicated above, Rule 6(1) of 2016 Rules does not contain any such stipulation of being in continuous engagement for the said period. Thus, it is apparent that the case of the petitioner for regularization has wrongly been rejected by the respondents.
Taking into consideration the aforesaid, the writ petition deserves to be allowed and is hereby allowed. A writ of certiorari is issued quashing the order dated 22.01.2019, a copy of which is Annexure-1 to the writ petition. A writ of mandamus is issued to the respondents to consider the case of the petitioner for regularization in accordance with 2016 Rules within a period of two months from the date of receipt of a certified copy of this order.
Order Date :- 29.7.2021 Pachhere/-