On an application for disposal of application for interim relief, with the consent of learned Counsel for the parties, the writ petition is being disposed of finally.
Heard learned Counsel for the petitioner and learned Standing Counsel.
Learned counsel for the petitioner submits that the petitioner was appointed as Beldar on daily wage basis on 25.1.1989 and since last eight years, the petitioner is working on the post of Peon with full devotion and satisfaction of the opposite parties but the opposite parties has neither regularized the services of the petitioner nor pay the salary of regular pay-scale. He submits that services of the similarly situated persons,have been regularized and they are getting their salary regularly whereas the claim of the petitioner was not considered accordingly. Feeling aggrieved, the petitioner has preferred the instant writ petition.
Counsel for the petitioner submits that the petitioner has regularly represented before the authorities regarding minimum pay-scale as well as for payment of salary but the opposite parties have not considered the same.
On the other hand, learned Standing Counsel submits that regularization can be done only against the sanctioned posts and in absence of vacancies, it shall not be possible for the opposite parties to regularize the services of the petitioner.
I have given my anxious consideration to the argument advanced by the learned counsel for the parties.
Ordinarily it is not for this Court to direct for regularization. The incident of regularization is governed by U.P. Regularization of Daily Wages Appointments on Group 'D' Post Rules, 2001 [hereinafter referred to as Rules 2001 for the sake of brevity]. Hence only the competent authority may take a decision to regularize the services in accordance to Rules, 2001. It is not for this Court to usurp the power vested in the authorities under the Service Rules. It has not been disputed that some of the juniors have been regularized. Though, the State has got right to fill up the 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, 2001 to consider the cased of the employees, who are serving in the department like the present case for about one decade and more.
Needless to say that the Rules framed under Article 309 of the Constitution of India have got statutory force and once Rule 4(a) of the Rules enables 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. The experience and knowledge of the employees who are working in the department shall always be useful to run the administration and in case their case is covered by regularization rules, they shall have right to be considered for regularization under the Rules. Such employees will have edge over the freshers in the matter of recruitment. The freshers may be appointed through direct recruitment but that should be done only after considering the case of old employees working in the department in accordance to statutory provisions.
Right to life with dignity, right to quality of life and right to livelihood are fundamental rights guaranteed under Article 21 of the Constitution of India vide 1997 (9) SCC 377:Air India Statutory Corporation V. United Labour, AIR 1991 SC 101 : Delhi Transport Corporation V. DTC Mazdoor Congress, 1985 (3) SCC 545 : Olga Tellis and others V. Bombay Municipal Corporation and others, 2001 (6) SCC 496:Hinch Lal Tewari V. Kamla Devi. Employees cannot be deprived of their statutoryUntitled 1 rights available under the Rules, 2001 to be considered for regularization, which co-relate with their livelihood. Accordingly, it is unjust and improper to make direct recruitment without considering the case of the old employees for regularization against the existing vacancies under Rules, 2001.
Considering the peculiar facts and circumstances of the case as also without entering into the merits of the case, the writ petition is disposed of finally with a direction to the opposite parties to consider the case of the petitioner for regularization in accordance with Rules, 2001, expeditiously, say, within a period of three months from the date of receipt of a certified copy of this order.
Order Date :- 2.2.2010 Ajit/-