1. Heard learned counsel for the petitioner and learned Standing counsel appearing for the State-respondents.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
(a) Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 30.05.2016, passed by Opposite Party No. 3 as contained in Annexure 1 No. 1 to this writ petition.
(b) Issue a writ, order or direction in the nature of Mandamus thereby commanding and directing the opposite parties to regularize the services of the petitioner as Class IV employee as per provision of U.P. Regularization of daily wages appointments on Group D Posts Rules 2011 and also keeping in view the law laid down by this Hon'ble High Court in the case of Janardan Yadav Vs. State of U.P and Ors, reported in 2008 (1) UPLBEC 498.
(c) Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to pay the regular pay scale as per Government Pay Scale be provided to the petitioner along with all consequential benefits.
(d) Issue a writ, order or direction in the nature of Mandamus commanding the Opposite Parties till waiting the regularization the petitioner be provided atleast minimum pay scale on his post in accordance with law.
(e) Issue any other order or direction this this Hon'ble Court may deem fit and proper under the facts and circumstancs of the case in favour of the petitioners in the interest of justice.
(f) Allow the cost of the writ petition in favour of the petitioners.
3. The case set forth by the petitioner is that he was engaged as Class IV employee on daily wages in the Forest Department in Faizabad Region, Faizabad in the month of February, 1991 and his name also finds place at Serial No. 153 in the seniority list prepared by the respondents, a copy of which has been filed as annexure 2 to the petition wherein the date of appointment of the petitioner has been indicated as February, 1991 and the petitioner has been indicated as working on daily wages. The petitioner submits that on account of his long working, he is entitled for being regularized in terms of the Uttar Pradesh Regularization of Daily Wages Appointments on Group D Posts Rules, 2001 (hereinafter referred to as "Rules, 2001") which categorically provides in Rule 4 that a person who was directly appointed on daily wage basis on a Group D post before 29.06.1991 and is continuing in service as such on the date of commencement of the rules i.e 21.12.2001 and who is possessed of the requisite qualification prescribed for regular appointment, should be regularized.
4. When the case of the petitioner was not considered for regularization, he preferred Writ Petition No. 781 (SS) of 2013 Inre; Vivek Kumar Vs. State of U.P and Ors. This Court invited a counter affidavit wherein the respondents admitted that the petitioner was working on daily wage basis in Maya Range since the month of February, 1991 but his name was not mentioned in the cash book and the petitioner has not worked continuously from 29.06.1991 to 21.12.2001 and therefore, he was not regularized. After considering the aforesaid averments made in the counter affidavit, this Court taking into consideration the judgment of this Court in the case of Janardan Yadav Vs. State of U.P and Ors reported in (2008) 1 UPLBEC 498 held that there is no requirement of continuous working of a daily wager and the only thing required is that the daily wager should have been appointed prior to the date of 29.06.1991 and should have been contiuing in service as on 21.12.2001. In this view of the matter, this Court, vide judgment and order dated 25.02.2016 directed the respondents to consider the case of the petitioner for regularization under the Rules, 2001 and in the light of the law laid down in the case of Janardan Yadav (supra) within three months.Copy of judgment and order dated 25.02.2016 is Annexure 4 to the petition. In pursuance thereof, the respondents have passed the impugned order dated 30.05.2016, a copy of which is annexure 1 to the petition by which the claim of the petitioner has been rejected on the ground that his name has not been found entered in the records. Being aggrieved, the present petition has been filed.
5. Learned counsel for the petitioner contends that in the earlier round of litigation, the respondents had filed a counter affidavit, a copy of which has been filed as annexure 6 to the petition wherein in paragraph 7 the respondents have categorically admitted that the petitioner had been working since February, 1991 in the Maya Range. It has also been contended in the said counter affidavit that the petitioner's working from February, 1991 to October, 2004 had been sent for being examined vide letter dated 04.07.2013 and upon examination, it transpired that the name of the petitioner is not entered in the cash book. Thus, it was contended that the petitioner has not worked continuously from 29.06.1991 to 21.12.2001.
6. Learned counsel for the petitioner contends that considering the said averments as made by the respondents in the counter affidavit this Court had placed reliance over the earlier judgment of this Court in the case of Janardan Yadav (supra) and has held that continuous working is not required. Now the respondents have come with a plea while rejecting the claim of the regularization that the name of the petitioner has not been entered in the records.
7. Learned counsel for the petitioner further contends that the respondents while filing their earlier counter affidavit had also brought on record the working of the petitioner through annexures 1 and 2 to the said counter affidavit, which form part of annexure 6 of the petition, wherein the petitioner's working from February, 1991 till 05.10.2004 had duly been certified by the Forest Range Officer, Maya Range, Faizabad but it has been indicated that the name of the Petitioner is not entered in the cash book. It is contended that the petitioner is not responsible for having his name entered in the cash book and once the respondents have certified the working of the petitioner and in case the entry was not made in the cash book, consequently for such administrative error or lapse on the part of the respondents, the petitioner cannot be allowed to suffer more particularly when the working from February, 1991 to October, 2004 is duly certified by the respondents themselves. Thus, it is contended that even if the petitioner has not worked continuously yet keeping in view the documents as referred to above, the working from February,1991 till October, 2004 duly stands verified by the respondents themselves and as such the law laid down by this Court in the case of Janardan Yadav (supra) would come into play and even if the name of the petitioner is not entered in the relevant records, that would not and cannot depart from the fact of the petitioner having worked as certified by the respondents themselves. Thus, it is contended that the impugned order rejecting the claim of the petitioner merits to be quashed.
8. On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit argues that upon checking of records, it transpired that the name of the petitioner is not contained in the cash book. However, specific averment has been made in paragraphs 10 and 11 in the counter affidavit that the working of the petitioner before 29.06.1991 up to21.12.2001 has not been continuous and, therefore, he has not been found entitled for minimum pay scale/regularization on a Group D post. Thus, it is contended that impugned order by which the claim of the petitioner for regularization has been rejected is legal and valid in the eyes of law.
9. Heard learned counsels for the contesting parties and perused the records.
10. From a perusal of records it clearly comes out that the claim of the petitioner for regularization has been rejected by the respondents by means of the impugned order dated 30.05.2016 on the ground that his name has not been found entered in the relevant records. The said averment is patently belied from the records as filed by the respondents themselves before this Court in the earlier round of litigation as per the counter affidavit inasmuch as a specific averment had been made in the earlier counter affidavit of the petitioner not having worked continuously from 29.06.1991 to 21.12.2001 as per the averment made in paragraph 7 of the earlier counter affidavit yet as the same time,as per the records filed by the respondent themselves, the working of the petitioner from February 1991 to October 2004 was certified through records but the name of the petitioner was not entered in the cash book. Even now the respondents have indicated in paragraphs 10 and 11 that though the petitioner has worked yet has not worked continuously from 29.06.1991 up to 21.12.2001. Continuous working is not a sine qua non as is sought to be made out by the respondents taking into consideration the law laid down by this Court in the case of Janardan Yadav (supra) wherein this Court has held as under:-
"The only question up for consideration is whether the said Rules require continuous service throughout, i.e., from the date of initial engagement till the commencement of the Rules. In my view, there is no such requirement under the Rules as is apparent from perusal thereof. Rule 4(1) of Rules 2001 is reproduced as under:
"4. Regularisation of daily wages appointments on Group ''D' posts.- (1) Any person who-
(a)was directly appointed on daily wage basis on a Group ''D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and
(b)possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''D' post, on the date of 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."
The only requirement under Rule 4(1)(a) are that the incumbent was directly appointed on daily wage basis on a Group 'D' Post in a Government Service before 29.6.1991 and is continuing in service as such on the date of commencement of the said Rules. The further requirement under Clause (b) of Rule 4(1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis."
11. Thus, it is apparent that even if the petitioner has not worked continuously that would not be a bar to the claim of the petitioner being considered for regularization taking into consideration that the only requirement is of the incumbent having been engaged prior to date of 29.06.1991 and being in a engagement/service as on the date of promulgation of the rules i.e 21.12.2001.
12. So far as the grounds taken by the respondents in the impugned order of the name of the petitioner not being found in the relevant records,including cash book suffice to state that the respondents had themselves brought on record the detail chart of the working of the petitioner from February, 1991 till October, 2004 which has been verified by the Forest Range Officer, Maya Range, Faizabad. The mere fact that though the working was certified yet the same did not tally with the cash book though calls for an administrative inquiry by the respondents themselves yet at the same time does not and cannot take away the fact of the working of the petitioner as clearly comes out from a perusal of the aforesaid documents which have been brought on record as part of annexure 6 to the petition. Thus, even the said ground as taken by the respondents is legally not sustainable in the eyes of law.
13. Accordingly, taking into consideration the aforesaid discussions, the writ petition deserves to be allowed and is allowed. A writ of certiorari is quashing the impugned order dated 30.05.2016, a copy of which is annexure 1 to the petition. A writ of Mandamus is issued directing the respondent no. 3 i.e Divisional Forest Officer, Forest Division, Faizabad to consider the case of the petitioner for regularization taking into consideration the observations made above as well as the judgment of this Court in the case of Janardan Yadav (supra). Let the said consideration be done within a period of three months from the date of communication of a certified copy of this order.
Order Date :- 29.8.2019 Pachhere/-
(Abdul Moin, J.)