Dharampal vs Shri Rajiv Asthana, D.F.O. Social Forestry Division

Vikram Nath, J.—Pursuant to the order dated 4.2.2010, the opposite party is present. In response to the notice a reply has been filed by the opposite party to which a rejoinder affidavit has also been filed.

This Court had passed a detailed order on 30.11.2009, which was reiterated on 23.12.2009.

The applicant was working as a Group ''D'' Employee in the Forest Department since July 1987 on daily wage basis. The services of a large number of similarly situate daily wage employees working in the Forest Department were not being regularised despite they having put in several years of service as daily wagers. Such daily wagers filed petitions before this Court, claiming regularisation pursuant to the Regularisation Rules, 2001 namely The U.P. Regularisation of Daily Wages Appointment on Group ''D'' Posts Rules, 2001. A controversy arose with regard to the implementation of the said Rules and also with regard to the question where some of these daily wagers had not worked for certain periods during the long tenure as daily wagers. Such a situation had not only arisen in the Forest Department but also in other departments, including Horticulture Department. A learned Single Judge of this Court in the case of Jag Lal and Ors. v. Director, Horticulture, U.P., Lucknow and Ors. 2003(3) E.S.C. 1745, after considering the 2001 Regularisation Rules, had issued five directions to be considered while considering the case for regularisation of such daily wagers. In direction No. 2 it had been specifically provided that the cases of all such candidates were to be considered for regularisation, who were appointed and working before June 29, 1991 and were continuing in service on the date of the commencement of the Rules i.e. 21.12.2001, ignoring any break or breaks in service in between the said period. With regard to the Forest Department in the case of Mahkar Singh, who had filed Writ Petition No. 19531 of 2002, the learned Single Judge had disposed of the writ petition following the judgment in the case of Jag Lal (supra), vide order dated 4.2.2004. The writ petition filed by the applicant being Writ Petition No. 23659 of 2002 was disposed of vide order dated 27.2.2004 on the same terms and conditions as contained in the case of Mahkar Singh (supra).

Before referring to the special appeal filed in the case of the applicant it would be relevant to mention that against the judgment of the learned Single Judge in the case of Jag Lal (supra) no intra court appeal was filed. However, in the case of Brijendra Malviya and Ors., who were similarly situated as the applicant, the State had filed an intra court appeal, registered as Special Appeal No. 334 of 2004 (D), State of U.P. v. Brijendra Malviya and Ors. The Division Bench of this Court vide judgment and order dated 27.4.2004 partly allowed the said appeal and without touching the direction Nos. 2 and 3 in the case of Jag Lal (supra) modified the direction No. 4 partly and set aside the direction No. 5 thereof, which related to the payment of minimum pay scale to the daily wagers, as according to the Division Bench until and unless they were regularised they would not be entitled to the payment of minimum pay scale. The intra court appeal filed by the State in the case of the applicant being Special Appeal No. 970 of 2004 (D), the Divisional Forest Officer and Ors. v. Dharampal, was disposed of vide judgment and order dated 9.11.2004 on the same terms and conditions as contained in the judgment of the Division Bench dated 24.7.2004 in the case of Brijendra Malviya and Ors. (supra). Litigation between the State and the applicant came to rest at this stage.

When the directions of this Court were not complied with the applicant filed this contempt application in October 2005. Upon issue of notice a reply was filed by the opposite party in January 2006 and along with which is enclosed an order dated 16.1.2005, whereby although it is not disputed that the applicant was not working on 29.6.1991 and had not continued on 21.12.2001, his claim has been rejected on the ground that there was a break in service in between i.e. from December 1992 to March 1997. The opposite party has tried to defend his decision as being in accordance with law and in accordance with the 2001 Regularisation Rules.

Heard Sri Siddhartha, learned Counsel for the applicant and Sri K.N. Shukla, Advocate appearing for the opposite party.

The submission advanced on behalf of the applicant is that once the Writ Court had disposed of the writ petition of the applicant with a direction that his case may be considered for regularisation ignoring any break or breaks in service, in the light of the directions contained in the case of Jag Lal (supra) and even the intra court appeal filed by the State had been disposed of in terms of the judgment and orders of the Division Bench of this Court in the case of Brijendra Malviya and Ors. (supra), there was no scope for the opposite party rejecting the claim of the applicant on the ground of break in service between the period from 1991 to 2001. According to the learned Counsel for the applicant the order passed by the opposite party amounts to clear disobedience of the directions contained in the order of the Writ Court. It is further submitted by the learned Counsel for the applicant that the intra court appeal filed by the State against the judgment of the Writ Court had actually been disposed of upon an agreement as recorded in the order itself. It is thus submitted that after having got the special appeal decided on agreed terms, it was totally unfair on the part of the opposite party to have not followed the directions contained in the judgment of the learned Single Judge as affirmed by the Division Bench. There is deliberate harassment to the applicant and he has not been able to reap the benefits of the judgment of the Writ Court. The opposite party has committed wilful disobedience and is liable to be punished as such.

On the other hand the learned Counsel for the opposite party has sought to justify the decision of the opposite party, relying upon certain other decisions of this Court. Firstly the learned Counsel for the opposite party has relied upon an order of this Court dated 30.4.2007 passed in Contempt Application No. 405 of 2005, Ram Kishan v. Rajiv Asthana, Divisional Forest Officer, Social Forestry Division, Muzaffarnagar. Further he has also relied upon a judgment of the learned Single Judge in Writ Petition No. 949 of 2003, Raj Kumar Rai v. State of U.P. and Ors. and other connected matters and has referred to page No. 9 of the said judgment, according to which insignificant breaks in service should not be of more than three months.

Both these judgments relate to different parties and not to the case of the applicant. Litigation between the applicant and the State came to rest upon the decision of the Division Bench dated 9.11.2004 passed in the intra court Appeal No. 970 of 2004 (D), against the order of the Writ Court in the case of the applicant. Any other decision, relating to other parties and not to the applicant, cannot wipe off the effect of the orders of the Writ Court and the Division Bench interse the applicant and the State.

The opposite party was bound by the orders of the Writ Court as referred to above. Any break or breaks without considering its length, were to be ignored provided the applicant had been working on June 29, 1991 and had been continuing in service on 21.12.2001. It is not disputed that the applicant was not working on 29.6.1991 and was continuing in service on 21.12.2001. Thus in view of the above the Court is convinced that this is a case of clear, deliberate and wilful disobedience of the order of this Court and the opposite party is liable to be punished.

At this stage Sri M.N. Shukla, learned Counsel for the opposite party upon instructions from the opposite party has submitted that the opposite party shall comply with the directions of this Court within fifteen days from today and file an affidavit of compliance to that effect.

List this case on 19.02.2010. On the said date the opposite party shall again remain present before this Court along with an affidavit of compliance. On the said date the Court will consider awarding of the costs / compensation to the applicant and appropriate punishment to the opposite party.