Avdhesh Kumar Singh Yadav vs State of U.P. and Others

Rajiv Sharma, J.—Heard learned Counsel for the petitioner and learned Standing Counsel.

With the consent of learned Counsel for the parties, I proceed to hear the matter finally at the admission stage itself.

Learned Counsel for the petitioner submit that the petitioner was engaged as Cattle Watcher on daily wage basis in the department of Forest in the year 1981 and since then, he has been working intermittently, but continuously and has been paid wages. Petitioner''s Counsel further contends that juniors to the petitioner have been regularized on the post of Forest Guard.

Further submission of the learned Counsel for the petitioner is that the identically situated employees in the Forest Department have preferred writ petitions, on being disengaged, in this Hon''ble Court as well as at Lucknow Bench of this Hon''ble Court and by means of judgment and order dated 24th May, 1996, passed in Writ Petition No. 5442 (SB) of 1995 of this Court, this Court has directed for regularization of services of the daily wage employees. The said judgment and order was assailed by the State of U.P. before the Apex Court and the Apex Court dismissed S.L.Ps. so preferred by the State of U.P. During the pendency of the aforesaid proceedings, the case of the State of U.P. and Others Vs. Putti Lal, , in respect of Forest Department employees, was decided by the Apex Court. In the said case of employees of Forest Department, this Court has provided, as an interim measure, for placing the employees in the minimum of the regular pay scale. The Apex Court while disposing of the SLP has observed as under:

Therefore, benefits of the said judgment of the learned Judge have to go to all the Daily Wagers/Muster Roll employees. It is admitted by the respondents that the pay at the rate as directed by the learned Judge in the said case, is being paid to those Daily Wagers who are members of Kumaun Van Shramik Sangh Centre and such payment is not being made to any other daily wager working anywhere in the State including in Kumaun hills. It is also admitted that the Scheme as directed by the leaned Judge has not been framed by the Government so far. The judgment of the learned Judge is binding on the Government and its functionaries. They are, therefore, bound to pay in terms of the said judgment to every daily rated labourers/muster roll employees and the Government is also bound to frame scheme for regularization of their service.

Thereafter, the State of U.P. has framed Uttar Pradesh Regularization of Daily Wages Appointment on Group ''C'' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 for regularization of category ''''C'' employees in the year 1998 and the Uttar Pradesh Regularization of Daily Wages Appointments on Group ''D'' Posts Rules, 2001 for regularization of category ''''D'' employee in the year 2001. On perusal of Rule 4 of the aforesaid Rules, it will be abundantly clear that a daily wage employee, who has been working on the cut off date, that is, 30th June, 1991 and has been working continuously on the proclamation of the notification of the aforesaid Rules shall be entitled for consideration of regularization of his services.

The aforesaid argument has been rebutted by the learned Standing Counsel on the grounds that the petitioner is working intermittently and not continuously from the cut off date till coming into force the aforesaid Rules in the year 2001.

Rule 4 of the Rules, 2001 has been interpreted by this Hon''ble Court in the case of Visheshwar v. Principal Secretary, Forest Anubhag-3 and Ors. (writ petition No. 47568 of 2002, decided on 29.11.2004) and this Court in the said case has held that in case the employee is working on the cut off date and is continuing as such on daily wage post on the date of proclamation of the notification of the aforesaid Rules, he is entitled for regularization, inspite of the fact that the employee worked intermittently.

In the instant case, the petitioner, as stated by counsel for the petitioner, has been engaged in the year 1981, though has worked intermittently, but on the cut off date i.e. 26th June 1991 as provided under the Rules he was working as daily wager and further on coming into force of the Rules, 2001 and as such, in view of the provisions of Rule 4 of the said Rules, which specifically provides that the daily wager employee, who has been working on the cut off date and on the proclamation of the notification are entitled for consideration of regularization of his services and as such the petitioner is entitled for consideration of regularisation of his services in view of the provisions of Rule 4 of the aforesaid Rules as interpreted by this Court in the case of Visheshwar (Supra).

In view of the above, without entering into the merits of the case, the opposite parties are directed to consider the case of the petitioner in accordance with the provisions of the Uttar Pradesh Regularization of Daily Wages Appointments on Group ''D'' Posts Rules, 2001 for regularization of his services on the post of Forest Guard, from the date when juniors to the petitioner have been regularized, in accordance with law as well as the law laid down by the Apex Court and by this Court, expeditiously, preferably within three months from the date of presentation of a certified copy of this order.

With these observations, writ petition succeeds and is allowed.