The petitioner is claiming regularisation on a Group 'C' post in Rural Engineering Department, Hardoi. He has instituted this writ petition seeking a writ of certiorari to quash the impugned order dated 22nd January, 2011 passed by the Executive Engineer, Rural Engineering Department, Hardoi, the third respondent, rejecting the claim of the petitioner for regularisation.
A brief reference to the factual aspects would suffice.
The petitioner was initially engaged on daily wages basis on 01st February, 1978 in the Rural Engineering Department at Hardoi. His services were orally terminated in February, 2000. Challenging the said order, he preferred a writ petition, being Writ Petition No. 3427 (S/S) of 2000 (Sri Surendra Pal Bhardwaz v. State of U.P. and others) and also sought a direction for his regularisation. This Court disposed of the said writ petition on 10th July, 2000 by issuing a direction that if the petitioner is continuously working then in terms of the Uttar Pradesh Regularisation of Daily Wages Appointments on Group 'C' Post (Outside purview of the Public Services Commission) Rules, 1998 (for short, the "Rules, 1998") his case be considered for regularisation.
In compliance with the aforesaid order of this Court, on 18th August, 2000 the third respondent passed a detailed order permitting the petitioner to join his duties. It is stated that in compliance with the said order, the petitioner joined his duties and continued to work till his superannuation in 2010. However, no order for regularisation was passed. It is further stated that in the seniority list of Group 'C' Daily Wagers, which was prepared on 07th July, 2005, the petitioner is shown at Serial No. 32. A copy of the said seniority list is on the record as annexure-3 to the writ petition.
In the meantime, the State Government on 08th September, 2010 had sanctioned supernumerary posts for absorption/ regularisation of daily wage workers, who are appointed before the cut off date viz. 29th June, 1991 as provided in the Rules, 1998. In spite of the said Government Order, the petitioner's case was not considered and he retired on 31st December, 2010. Before his retirement, the petitioner preferred another writ petition, being Writ Petition No. 8811 (S/S) of 2010, for a direction upon the respondents for his regularisation before his retirement on 31st December, 2010. The said writ petition was disposed of by this Court on 22nd December, 2010 directing the respondents to consider the petitioner's claim for regularisation prior to 31st December, 2010 i.e. his date of retirement. The order of this Court is on the record as annexure-7 to the writ petition. It is stated that the said order was not complied with, then the petitioner was compelled to file a contempt petition, Contempt Application No. 875 (C) of 2011. After filing the contempt petition, on 22nd January, 2011 the petitioner's claim has been rejected by the impugned order.
The third respondent in the impugned order has stated that it was not possible to regularise the petitioner on the ground that before his retirement no post was available.
It is contended by the petitioner that the said stand is not correct. The petitioner has averred in paragraph-11 of the writ petition that several juniors to the petitioner have been regularised on supernumerary posts. It is also stated that the petitioner has been continuously working for more than 32 years and he was entitled for regularisation in terms of the Rules, 1998.
A counter affidavit has been filed on behalf of the respondents. In the counter affidavit the ground mentioned in the impugned order has been reiterated. A further stand has been taken that a Committee was constituted vide order dated 20th January, 2011 for disposal of the matter of petitioner's regularisation. The said Committee scrutinized the record available in the file and relevant papers and in its recommendations dated 21st January, 2011 it found that since in Hardoi Division there was no vacant post of Junior Clerk, petitioner's regularisation was not possible. Consequently, a detailed order was passed on 22nd January, 2011. In the counter affidavit the fact that several juniors to the petitioner have been regularised, has not been denied.
I have heard learned counsel for the petitioner and learned Standing Counsel.
Km. Vishwamohini, learned counsel for the petitioner, submits that the petitioner was initially engaged in 1978 and uninterruptedly worked, hence he is entitled for regularisation under the Rules, 1998. She has invited the attention of the Court to paragraph-11 of the writ petition, wherein a specific statement has been made that juniors to the petitioner, who were appointed much after his engagement, have been regularised. The seniority list, which has been brought on record, also indicates that juniors to the petitioner have been regularised.
Learned counsel for the petitioner has placed reliance on a judgment of the Supreme Court in the case of Prem Ram v. Managing Director, Uttarakhand Pay Jal & Nirman Nigam, Dehradun and others, (2015) 3 UPLBEC 1766, and a Division Bench judgment of the Rajasthan High Court at Jodhpur in the case of State of Rajasthan and others v. Smt. Saroj, Civil Special Appeal (Writ) No. 706 of 2014, decided on 06th January, 2015.
Learned Standing Counsel submits that a Committee was constituted to consider the regularisation of the petitioner and it has found that the regularisation of the petitioner was not possible for the reason that no vacant post was available. He has also stated that the petitioner has retired, hence his regularisation cannot be considered. He further submits that the juniors to the petitioner have been regularised after the retirement of the petitioner in pursuance of the Government Order dated 21st June, 2012.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the record.
Concededly, the petitioner was engaged in the year 1978. He was disengaged in the year 2000 by an oral order. He immediately preferred a writ petition in this Court which was allowed on 10th July, 2000. This Court in its order dated 10th July, 2000 has held that if the petitioner is working continuously, then his case be considered for regularisation in terms of the statutory Rules, 1998. The said decision was complied with by the authorities vide order dated 18th August, 2000, whereby the petitioner was allowed to join, and in pursuance of the said order he uninterruptedly worked till his retirement. The petitioner has categorically stated in paragraph-11 of the writ petition that his juniors have been regularised on supernumerary posts. This fact has not been specifically denied in the counter affidavit.
As regards the submission of learned Standing Counsel that his juniors have been regularised after the retirement of the petitioner and at that point of time there was no vacant post available, the fact remains that supernumerary posts were created and this Court while disposing of the writ petition on 10th July, 2000 also directed the respondents to consider the petitioner's case for regularisation. So far as the submission of learned Standing Counsel that juniors to the petitioner were regularised in terms of the Government Order dated 21st June, 2012 is concerned, it was in furtherance of the Government Order dated 08th September, 2010, which was issued prior to retirement of the petitioner and the petitioner immediately rushed to this Court by means of Writ Petition No. 8811 (S/S) of 2010, which was disposed of by this Court prior to his retirement on 22nd December, 2010 and a positive direction was issued to the respondents to consider the claim of the petitioner for regularisation. This order of the Court has not been complied with and the petitioner was allowed to retire. Thus, there was no fault on the part of the petitioner. If there was any delay, it was on account of inaction on the part of the respondents who did not consider the case of the petitioner for regularisation in terms of the Government Order dated 08th September, 2010, whereunder supernumerary posts were created, and the earlier order of this Court dated 10th July, 2000, whereby a direction was issued to consider his regularisation in terms of the Rules, 1998.
Indisputably, the petitioner's engagement was made prior to cut off date i.e. 29th June, 1991 as provided in the Rules, 1998. Thus, the petitioner was entitled for regularisation in terms of the Rules, 1998 as well as the Government Order dated 08th September, 2010.
As regards the submission of the learned Standing Counsel that the petitioner has retired, therefore, his case cannot be considered is concerned, the Supreme Court had the occasion to consider this issue in the case of Prem Ram (supra), wherein the Court has held as under:
"9. If that be so, there is no denying the fact that the persons who were junior to the appellant, having been engaged much later than him, steal a march over him in terms of regularization in service while the appellant remained embroiled in litigation over what was eventually found to be an illegal termination of his service. It is true that the appellant has already superannuated. That does not, however, make any difference. What is important is that the appellant had been appointed as early as in the year 1988 and had by the time the decision of this Court in Umadevi's (3) case (supra) pronounced, already completed more than 10 years service. Government has formulated rules for regularization of such daily-wagers, no matter the same are the subject matter of a challenge before the High Court. What is noteworthy is that neither the State Government nor the Jal Nigam has resented the idea of regularization of those who have served for over a decade. The rules providing for regularization are a sufficient enough indication of that fact. We do not, therefore, see any impediment in directing regularization of the service of the appellant on the analogy of his juniors with effect from the date his juniors were regularized and for the release of all retiral benefits in his favour on that basis by treating him to be in continuous service till the date of his superannuation. We make it clear that this direction will not entitle the appellant to claim any amount towards arrears of salary based on such regularization."
Similar view has been taken by the Division Bench of the Rajasthan High Court in Smt. Saroj (supra) also.
After careful consideration of the submissions raised by the learned counsel for the parties and the law mentioned above, I am of the view that the impugned order has not been passed in proper perspective and has been passed by ignoring the Rules, 1998 as well as the orders of this Court dated 10th July, 2000 and 22nd December, 2010. Accordingly, the impugned order dated 22nd January, 2011 is set aside. In case the orders of the Court are not complied with, it is duty of the Court to balance equity. Accordingly, a direction is issued upon the third respondent to reconsider the case of the petitioner for regularisation in the light of the observations made herein-above within two months from the date of communication of this order. In case the petitioner is regularised, needless to say that he will be regularised from the date when his juniors have been regularised and all the consequential benefits will follow.
Accordingly, the writ petition is allowed. No order as to costs.
Order Date :- 10.11.2016 SKT/-