Narayan Singh vs State of U.P.& Ors.

Shri Narayan Shukla, J.—Heard Mr. Y.S. Lohit learned Counsel for the petitioners and the learned Standing Counsel for the respondents.

By means of this writ petition, the petitioners have prayed for a writ of certiorari for quashing the impugned order dated 2322005 contained in Annexure1 to the writ petition, whereby the petitioners'' representation for their regularization on Group ''D'' post has been rejected and they have further prayed for a writ of mandamus commanding the respondents to consider the petitioners case for regularization on Group ''D'' post and to pay them salary admissible to their counterparts working on the regular establishment till such consideration for regularization is made.

Briefly stated the facts of the case are that the petitioners have been working on different posts of Group ''D'' in the Directorate of Information, U. P. Lucknow for the last 710 years on daily wage basis. Additional Director of Information issue a letter dated 2182000 seeking information about daily wage employees whose work and conduct was not satisfactory and who did not take interest in work. The petitioners having been found their work and conduct satisfactory, were allowed to continue in service and they are working and performing their duty with full devotion and utmost satisfaction of the authorities concerned, but they have not been appointed on regular basis although 27 posts were lying vacant. The petitioners were being discriminated in the matter of salary, hence they made the representation to Hon''ble the Chief Minister instructed the Director to take necessary action vide letter dated 15122000 as contained in Annexure4 to the writ petition. When no action was taken by the Director, the petitioners preferred another representation to the Chief Secretary to Government, who also directed the Director to take necessary steps. The Director marked it to the Deputy Director (Admn.). Consequently Deputy Director circulated a latter dated 2632003 to all the officers requiring them to make available the files pertaining to appointment of daily wagers, but of no avail.

Being compelled by the circumstances the petitioners filed a writ petition No. 202 (S/S) of 2005 for their regularization and payment of salary paid to their counterparts working on the regular establishment, stating inaction of the opposite parties in not taking any decision in the matter of their regularization. The said writ petition was finally disposed on 2512005 merely issuing a direction to the Director to dispose of the representation of the petitioners within a period of six weeks by passing a speaking and reasoned order.

The Director on receipt of the representation sought opinion from the Personal Department in the matter which in turn sought information from the Government regarding cut off date 2961991 mentioned in the Regularisation Rules of 2001, which in turn replied that no proceeding is pending consideration for cut off date 2961991. Consequently the Director rejected their representation merely by saying that since no proceeding regarding cut off date 2961991 is pending, the persons mentioned in the enclosed list working on daily wages are not entitled for their regularization.

A counteraffidavit has been filed on behalf of the State which supports the impugned order only by saying that since all the petitioners are appointees after the cut off date i.e. 2961991, they are not entitled for their regularisation.

A rejoinder affidavit has also been filed on behalf of the petitioners rebutting the averments made in the counteraffidavit and reiterating the facts mentioned in the writ petition and saying that the Director has not applied his mind in passing the order impugned and has mechanically rejected their representation without exercising his discretion and rationality.

It is pertinent to mention here that vide letter dated 1082004 (Annexure13) it is clear that the Principal Secretary to Hon''ble the Chief Minister has consented for absorption of daily wagers working in the Information Department and had directed to take necessary action in the matter. The letter dated 27122004 (Annexure15) referred to in the impugned order only refers to general rules that no proposal is pending regarding out off date 2961991 and not in connection with the request made for absorption of daily wagers working in the Information Department.

The learned Counsel for the petitioners has also attacked on the reasonableness and rationality of the out off date 2961991 mentioned in the Regularisation Rules, 2001 saying that this cut off date 2961991 was also mentioned in the Regularisation Rules of 1998 which was in respect to Group ''D'' posts and even after two and a half years, the Rules of 2001 were framed mentioning the same out off date. Learned Counsel for the petitioners has placed reliance on a recent decision of the Apex Court rendered in the case of WORKMEN OF BHURKUNDA COLLIERY OF CENTRAL COALFIELDS LTD v. BHURKUNDA COLLIERY OF CENTRAL COALFIELDS LTD. reported in (2006) 3 Supreme Court Cases 297, wherein a reliance has been placed on the case of State of Haryana v. Piara Singh, (1992) SCC 118, the relevant portion of which reads as under:

�So far as the workcharged employees and casual labour are concerned, the effort must be to regularize them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spellsay two or three yearsa presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularization. While doing so the authorities ought to adopt a positive approach coupled with an empathy for the person.�

It further held

�In the matter of regularization the main concern of the Courts to see that the rule of law is respected and to ensure that the executive acts fairly and gives a fair deal to its employees consistent with the requirement of Articles 14 and 16 of the Constitution. The State being a model employer should not exploit the employees nor taken advantage of the helplessness and misery of either the unemployed person or the person concerned, as the case may be ....... Where a temporary or ad hoc appointment is continued for long, the Court presumes that there is regular need for his services on a regular post and accordingly considers regularization.�

In the same judgment relying on the case of Hindustan Antibiotics Ltd. v. Workmen, (1967) 1 SCR 652, it has been held that security of tenure is essential for an employee so that he can give his best to the Job. This object can be attained by regularization of the employees within a reasonable period. Besides this, there is catena of judgments of the Hon''ble Supreme Court on this subject holding that on completion of three years'' service the employees should have been considered for regularization.

A Division Bench of this Court has held in Jai Kishan & Ors. v. U.P. Cooperative Bank Ltd., Lucknow & Ors., reported in (1989) 2 UPLBEC 144, on the subject of U.P. Regularisation of Ad hoc Appointments (on Posts within the Purview of U.P. Cooperative Institutional Service Board) Regulation, 1985, that fixation of date in Regulation 4(1) of Regulation, 1985 is arbitrary and discriminatory and that part of the Regulation is hit by Article 14 of the Constitution of India, relevant portion of which is quoted below:

�In order to pass the test of permissible classification, two conditions must be fulfilled. The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that the differentia must have a rational relation to the objects sought to be achieved by the Statute in question.

Nothing has been shown on behalf of the State to establish the rational principle and the object which was sought to be achieved by classifying the ad hoc appointees by fixing a particular date, namely 151983 and making the benefit of the regularization rules available to those who were appointed prior to 151983 and not extending the benefit to the employees appointed thereafter. Under the provisions of Regulation of 1985 as existing those who had to complete three years service even after 3071985 were to be considered. Fixation of date in Regulation 4(1) of Regulations of 1985 is arbitrary and discriminatory and that part of the Regulation is hit by Article 14 of the Constitution of India, as a result of which those petitioners who were appointed at least on or before the date of notification i.e. 3071985 are also entitled for consideration for regularization according to Regulations of 1985 before these posts are regularly filed.�

In view of the law laid down by the Apex Court as well as of this Court and in view of the facts that there is regular need of the petitioners in the department as they are working for the last 710 years and their work, conduct and performance have been appreciated by all the superiors, they are entitled for their regularization in the said department, so that there may not be exploitation of the petitioners taking advantage of the helplessness and miseries as held in Piara Singh''s case (supra).

The target of framing the rules is to regularize the daily wagers who have completed a long spell of period. As in the Rules of U.P. Regulation of Daily Wages Appointment on Group ''C'' Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998 the State Government has fixed the cut off date 2961991 there is no reasonable nexus to fix the same cut off date in the rules framed in the year 2001 also. It is not disputed that the Government is in intention to regularize the daily wagers and for that purpose Rules have been framed.

Since it is settled law that the daily wagers can be regularized only against the sanctioned vacant post the Government is under obligation to maintain a seniority of daily wagers who are working continuously and to regularize them as and when the vacancy arises without fixing any such cut off date.

Under the circumstances cut off date i.e. 2961991 fixed under Rules 2001 for the purpose of regularization is hereby struck down and a writ of mandamus is issued to the respondents to consider the petitioners for regularization on Group ''D'' post which is lying vacant within the sanctioned strength according to the seniority, in accordance with the Rules 2001 ignoring the order impugned dated 2322005 which is hereby quashed.

The exercise of regularization shall be started by the respondents within two months from the date of production of certified copy of this order. The respondents are also directed to publish the position of vacancy of Group ''D'' post before starting the process of regularization.

In view of the aforesaid observations, the writ petition is allowed. No order as to costs.