RESERVED
Case :- WRIT - A No. - 27897 of 2018 Petitioner :- Vipin Kumar Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kamta Prasad,Murali Manohar Counsel for Respondent :- C.S.C.,Vishal Singh Hon'ble Piyush Agrawal,J.
1. Heard Shri Murali Manohar, learned for the petitioner; and Shri Vikram Bahadur Yadav, learned Standing Counsel for State – respondents.
2. By means of the present writ petition, the petitioner is assailing the impugned order dated 06.09.2017 passed by the Director, Directorate of Social Welfare, U.P., Lucknow, by which the claim of the petitioner for regularization has been rejected.
3. Learned counsel for the petitioner submits that on 01.03.1988, the petitioner was appointed on the post of Compounder/Hostel Warden on ad hoc basis under the temporary arrangement by the Deputy Director, Harijan & Social Welfare, Gorakhpur Division, Gorakhpur. After serving for about 31 years without any break, the petitioner was superannuated on 31.08.2019 on attaining the age of 60 years. At the time of initial appointment of the petitioner, the petitioner was having the education qualification of High School and requisite experience of two years in General Nursing & Midwifery. On 01.11.2012, the Director, Social Welfare wrote a letter to the Principal Secretary, Social Welfare, U.P. Government seeking proposal for regularization of ad hoc services of Nurse-cum-Compounder serving in the Department in accordance with the provisions of Uttar Pradesh Regularization of Ad-hoc Appointments (On Posts Outside the Purview of the Public Service Commission) Rules, 1979 and the amending Rules of 2001. In spite of various representations/ communications having been sent by the petitioner for regularization of ad hoc services, when no decision was taken, the petitioner filed Civil Misc. Writ Petition No. 25415 of 2017 before this Court. This Court, vide order dated 05.07.2017, disposed of the aforesaid writ petition with a direction to the respondents to consider the representation of the petitioner within the time-frame as fixed by this Court therein. Pursuant to the order of this Court, the Director, Social Welfare, vide order dated 06.09.2017, has rejected the claim of the petitioner for regularization on the post of Compounder. Hence, this writ petition.
4. Learned counsel for the petitioner submits that as per the Government Order dated 05.05.2009, under the Social Welfare Department, the post of Compounder/Nurse-cum-Compounder in the Government, Ashram Based School has been declared as dying cadre. The Deputy Secretary, Government of U.P. inquired on 07.11.2013 from the Director of Social Welfare, U.P. that the posts of ad hoc/untrained nurse-cum-compounder are to be regularized against which post and what will be the nature of service. Pursuant thereto, the Director, Social Welfare, vide letter dated 28.01.2014, replied to the Principal Secretary that these five ad hoc posts of untrained nurse-cum-compounder (out of five posts, one post of petitioner is also included) were included under 17 posts of Government Order dated 05.05.2009 and these 5 posts would be regularized against the post of Compounder and further, it was clarified that these 5 posts of Nurse-cum- Compounders would not be included in the cadre of Pharmacist. On 03.10.2017, the Director of Social Welfare wrote a letter to the Principal Secretary, Department of Social Welfare stating that taking into consideration the experience and work skill as well as long period of work of the petitioner and other similarly situated 4 employees, the claim for regularization may be considered sympathetically. The Director of Social Welfare, himself, in his reply dated 28.01.2014 clarified that these 5 dying posts of ad hoc untrained Nurse-cum-Compounder, including the petitioner, are to be regularized against the post of Compounder and the aforesaid posts will not be included in the cadre of Pharmacist.
5. Rebutting the submissions of the petitioner's counsel, learned Standing Counsel submits that admittedly, the petitioner was appointed on ad hoc basis for a temporary arrangement. Thereafter, vide Government Order dated 05.05.2009, the post of Compounder/Nurse-cum-Compounder in the Government, Ashram Based School has been declared as dying cadre and no appointment was directed to be made on the said post in future and after the death or retirement of an employee, if the vacancy arose, then the said post will automatically come to an end. The post of trained Nurse/Compounder has been amended as “Pharmacist” and for making appointment of such Nurse/Compounder, the candidate must, at best, be having the eligibility criteria as required for Pharmacist in Medical & Health Department. He further submits that the petitioner does not have the requisite qualification. More precisely, the petitioner does not have Diploma certificate issued by the State Medical Faculty of Uttar Pradesh and also, the petitioner is not registered with the State Pharmacy Council of Uttar Pradesh. The learned Standing Counsel has tried to justify the impugned order as absolutely legal.
6. The Court has perused the material available on record.
7. Admittedly, the petitioner was appointed on ad hoc basis for temporary arrangement by the Deputy Director of Social Welfare Department, Gorakhpur Division, Gorakhpur on the post of untrained Compounder. It is also not disputed that the petitioner, after contributing 31 years of long uninterrupted service, attained the age of superannuation on 31.08.2017. At the initial appointment of the petitioner, he was possessed with the requisite qualification as required for the post erstwhile. The Director of Social Welfare, vide his letter dated 01.11.2012, requested the Principal Secretary, Social Welfare, Government of U.P. seeking proposal for regularization of ad hoc services of Nurse-cum- Compounder serving in the Department in accordance with the provisions of Uttar Pradesh Regularization of Ad-hoc Appointments (On Posts Outside the Purview of the Public Service Commission) Rules, 1979 and the amendment Rules of 2001 keeping in mind the long period of satisfactory service and continuous contribution of the petitioner on the post in question.
8. The Joint Director of Social Welfare communicated to all Regional Deputy Directors of Social Welfare, that by the Government Order dated 05.05.2009, 17 temporary posts created as untrained Nurse-cum-Compounder in the Social Welfare Department are now declared as dying cadre. On close scrutiny of the aforesaid Government Order, it is clear that after declaring dying cadre of 17 temporary posts, two separate new cadres were created; namely, “Nurse-cum-Compounder” and “Pharmacist” cadres.
9. Admittedly, the petitioner was appointed as untrained Compounder and was having the requisite qualification at the time of his initial appointment and therefore, the petitioner can, at best, be merged under the new cadre of “Nurse-cum- Compounder” and he cannot be considered in the cadre of “Pharmacist” since he was not trained.
10. During the course of argument, learned Standing Counsel admits that no service Rules have been enacted for the Nurse-cum- Compounder cadre (untrained) and therefore, the requisite qualification and the educational qualification, which the petitioner had possessed at the time of his initial appointment, has not changed and the same will have no change even after the creation of new cadre of Nurse-cum-Compounder (untrained) and will equally be governed by the letter dated 25.03.1974 of the Director, Social Welfare.
11. The said fact is also clear from the letter of the Director, Social Welfare dated 28.01.2014 (Annexure No. 13), in which it has been clarified that against which posts, five ad hoc untrained posts of Nurse/Compounder will be regularized. The Director replied that these 5 ad hoc untrained posts are from the 17 temporary posts, which are declared dying cadre and these posts will be regularized against the same posts. It was further clarified the untrained Nurse/Compounder will not be merged in the proposed Pharmacist cadre as per the Government Order dated 05.05.2009. In other words, it is clearly provided that the petitioner will not be considered under Pharmacist Cadre; rather, he will be considered for regularization in the cadre of Nurse- cum-Compounder (untrained) as new separate cadre was created by the Government Order dated 05.05.2009.
12. In view of the aforesaid facts and circumstances, this Court finds that the impugned order is not sustainable in the eyes of law. The impugned order dated 06.09.2017 passed by the Director, Directorate of Social Welfare, U.P., Lucknow is hereby quashed.
13. The writ petition succeeds and is allowed. The respondents concerned are directed to regularize the services of the petitioner on the post of Compounder (untrained) in the Department of Social Welfare, U.P. and thereafter, pay all the consequential benefits, including pension, to the petitioner within a period of two months from today.
Order Date :-08/01/2021 Amit Mishra