Court No. - 33
Case :- WRIT - A No. - 10908 of 2021 Petitioner :- Shailendra Kumar Singh And 9 Others Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Jitendra Kumar Srivastava Counsel for Respondent :- C.S.C.,Anand Kumar Srivastava
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order dated 04.12.2020 passed by the Director, Local Bodies, whereby petitioners' request for regularisation of their services in the Nagar Panchayat, Harraiya, District Basti has been turned out. There is no objection in the order to the fact that petitioners were engaged prior to the cut off date specified in the regularisation rules 2016 and were also working on the date when these rules came into existence.
The order impugned records that there was no post created in Nagar Panchayat and the petitioners' engagement otherwise is contrary to law. The Director has further recorded in the order that there is no demand by the Nagar Panchayat otherwise for creation of supernumerary post for the purposes of regularisation.
This Court passed following orders on 29.09.2021:-
"Heard Sri Gajendra Pratap, learned Senior Advocate assisted by Sri Jitendra Kumar Srivastava, learned counsel for petitioners, learned Standing Counsel for respondent Nos. 1, 2 & 3 and Sri Anand Kumar Srivastava, learned counsel for respondent Nos. 4 & 5.
Learned counsel for petitioners submitted that impugned order dated 04.12.2020 has been passed contrary to the fact and in the operative portion of the impugned order, it has been clearly stated that neither posts are sanctioned nor any request has been made for creation of supernumerary post. It is next submitted that vide letters dated 04.05.2018, 12.10.2018 and 15.11.2019, respondent No. 4-Executive Officer, Nagar Panchayat-Harraiya, Basti has written letters for creation of posts, but without considering the same, impugned order has been passed, therefore, order is ex facie bad and is liable to be quashed.
Learned Standing Counsel prays for and is granted two weeks time to seek instruction as to whether any such request has been made by respondent No. 4 vide letters dated 04.05.2018, 12.10.2018 and 15.11.2019 or not and in case any such request has been made, as to why same has not been considered while passing impugned order.
Put up this case on 04.10.2021 as fresh.
In the mean time, Sri Anand Kumar Srivastava, learned counsel for respondent Nos. 4 & 5 is also directed to seek instruction as to whether letters dated 04.05.2018, 12.10.2018 and 15.11.2019 have been sent by respondent No. 4 to respondent No. 2 or not. "
Rule 5 of the 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 notified on 12.09.2016 reads as under:-
"5. Subject to the provisions of rule 2, regularisation under these rules shall be done on available vacant post in a Government Department.
Provided that if vacant post is not available then, as and when required, a supernumerary post may be created with the approval of the State Government."
The notification therefore takes care of a situation where the employee is entitled to regularisation but the regular posts are not available in the establishment. As per the rules in such circumstances supernumerary posts shall be created with the approval of the Government.
Though the order impugned records that no such request was made by the Nagar Panchayat concerned but pursuant to the orders passed on the previous occasion it is now admitted to the respondents, by way of instructions, that such request was made by the Nagar Panchayat to the State Government. The instruction nevertheless state that petitioners were actually engaged against specific posts and created without due authority and, therefore, the question of the creation of supernumerary posts does not arise.
I have heard Sri Gajendra Pratap, learned Senior Counsel assisted by Sri J. K. Srivastava, Sri A. K. Srivastava, learned counsel for respondent nos. 4 and 5 and learned Standing Counsel for the State authorities. In view of the instructions received and also in view of the undisputed factual position this petition is taken up for final disposal with the consent of learned counsel for the parties.
The stand taken by the respondents for justifying their action is absolutely in teeth of the rules and virtually frustrates the very object for which the rule itself has been notified. The object of notifying regularisation rules is to grant permanency to those employees in specified establishement who have continued for very long. The cut off date specified in the rules are 31.12.2001 and 12.09.2006 and, therefore, one who becomes entitled to regularised must have worked for this entire period except period of artificial break in service. The right of regularisation once is recognized the rules further contemplate that non availability of posts in such circumstances would not be a ground to deny consideration for regularisation. In order to deal with such exigency Rule 5 provides for creation of supernumerary posts. It is admitted to respondents by way of instructions that such request had been made by the Nagar Panchayat to the State Government.
Whether or not petitioners were appointed against any post created by Nagar Panchayat looses significance inasmuch as in the event it is found that their engagement was not against any post, duly sanctioned by the State, their claim for regularisation will have to be considered as per the Rules of 2016. Once petitioners fulfill necessary ingredients inasmuch as they were engaged prior to cut off date and were working on the date of issuance of the notification i.e. 12.09.2016, their claim shall be dealt with as per law. The order impugned cannot be sustained for the simple reason that an incorrect finding is recorded that no request for creating supernumerary posts was made by the Nagar Panchayat. Secondly, the respondents even after noticing the fact that such a request has been made have failed to act in terms of Rule 5 and pass necessary orders for creation of supernumerary posts. As consideration of petitioners' claim is found not to have been made in consonance with the Rules of 2016 as such the order passed by the Director dated 04.12.2020, cannot be sustained and is set aside. The matter stands remitted to the Director/ State Government for fresh consideration of cause in light of the above observations, keeping in view Rule 5 of the Rules of 2016 and also the fact that petitioners' engagement prior to cut off date and even on the date of issuance of notification remains undisputed. Such consideration shall be made within a period of four months from the date of presentation of a copy of this order.
Writ petition is, accordingly, disposed of.
Order Date :- 28.10.2021/Abhishek Singh