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Judgment
Devendra Kumar Arora, J.—By means of present writ petition, the petitioner has prayed for a writ in the nature of certiorari for quashing of the order dated 19.5.2005 (Annexure II), passed by the respondent No. 1. He has further prayed for a writ in the nature of mandamus directing the respondent No. 1 to re-consider him for regularisation on Group ''D'' post, ignoring the alleged breaks in service.
Facts of the case, in brief, are that the petitioner is a Group ''D'' employee in Forest Department, working on daily wage basis since July, 1990 but he has not been issued any appointment letter so far. The petitioner preferred a Writ Petition No. 47631 of 2004 before this Court which was finally disposed of vide order dated 09.11.2004 with the direction to the respondent No. 2 to consider the petitioner''s claim for regularisation within a period of three months as per the rules and the judgment of Hon''ble Apex Court in the case of State of U.P. v. Putti Lal. In pursuance of the order dated 09.11.2004 the respondent No. 1 rejected the petitioner''s claim for regularisation on the ground that there are breaks in his service from October, 1997 to June, 1998 and October, 1999 to March, 2000. Being aggrieved, petitioner has again approached this Court.
Submission of Learned Counsel for petitioner is that the petitioner has been continuously working for last more than 14 years under the respondents as a daily wager. His further submission is that the State Government has framed the Rules known as "U.P. Regularisation of Daily Wages Appointments on Group ''D'' Posts Rules, 2001 (hereinafter referred to as "rules, 2001''). Apart from it, the Hon''ble Supreme Court in its decision rendered in the case of State of U.P. and Anr. v. Putti Lal, decided on 21.2.2002 has also directed for regularisation of daily wage Group ''D'' employees on the basis of the Rules, 2001. The Rule 4(4) provides for preparation of a list of eligible candidates in order of seniority as determined from the date of order of appointment on daily wage basis and the same is to be placed before the Selection Committee alongwith relevant records to assess suitability. Further, as per Rule 4(1) of the said Rules any person who was appointed on daily wage basis on Group ''D'' post in the Government Service before 29.6.1991 and is continuing in service as such on the date of commencement of the Rules, would be entitled for consideration of his regular appointment. The petitioner is working in the department since July, 1990 and, as such, as per Rules, 2001 he is entitled for regular appointment.
Further submission of Learned Counsel for petitioner is that the respondent No. 1 in pursuance of Rules, 2001 forwarded the names of Group ''D'' employees of the Department to the Selection Committee but petitioner''s name was not forwarded for the reasons best known to him. Being aggrieved the petitioner preferred a Writ Petition No. 47631 of 2004 before this Court which was finally disposed of vide order dated 09.11.2004 with the direction to the respondent No. 2 of the said writ petition to consider the petitioner''s claim for regularisation within a period of three months and in pursuance of the said order the respondent No. 1 rejected the petitioner''s claim for regularisation on the ground that there are breaks in his service from October, 1997 to June, 1998 and October, 1999 to March, 2000. In this regard, Learned Counsel for the petitioner submitted that small breaks cannot said to be of any relevance, while considering the claim of petitioner in view of decision of this Court in W.P. No. 16842 of 2004, Jaglal and Ors. v. Director, Horticulture and Ors. as in the said decision it has been categorically observed that the employees working since 21.6.1991 and on 21.12.2001 (When the Regularisation Rules, 2001 came into force) are to be regularised irrespective of any breaks in service.
The last submission of Learned Counsel for petitioner is that Forest Department is an ''industry'' as has been held by the Hon''ble Apex Court and the term ''continuous service'' has been defined u/s 2(g) of the U.P. Industrial Disputes Act. The petitioner has worked for more than 14 years in the Department and now if his services are not regularised, it would be in violation of Articles 14, 16, 19 & 21 of the Constitution of India.
In the Counter Affidavit filed on behalf of opposite parties it is stated that the petitioner is not a Group ''D'' employee rather he is a labour working on daily wages basis and no appointment letters are issued in favour of the daily wage workers. In para 5 of Counter Affidavit, it has been mentioned that in compliance of decision of Hon''ble Apex Court a meeting of Selection committee was held in respect of regularisation of employees of Group ''D'' post in which petitioner''s name was also considered but he was not found fit as there were many short and long breaks in service of petitioner. Further, in para 9 of counter affidavit it has been averred that since period of break in the service of petitioner was more than three months and, as such, he was not found eligible for regularisation on Group ''D'' post in view of judgment & order dated 28th May, 2004, passed by this Court in Writ Petition No. 949 of 2003, Raj Kumar Ram v. State of U.P. and Ors. by which it has been provided that the services of daily wager working in Forest Department shall be deemed to be continuous if the break in service is of less than three months.
Learned Counsel for petitioner reiterated his earlier arguments in his reply.
I have heard Learned Counsel for parties and gone through the record.
From the pleadings of the writ petition, it is evident that the petitioner is working as a daily wager in the Forest Department since July, 1990 and his case falls within the purview of U.P. Regularisation of Daily Wages Appointments on Group ''D'' Posts Rules, 2001 (hereinafter referred to as ''Rules, 2001''). The candidature of the petitioner was considered by the respondent No. 1 in pursuance of the directions issued by this Court in Writ Petition No. 47631 of 2004 and the claim of the petitioner was rejected on the ground that there were certain breaks in the service of petitioner.
The only question which requires to be decided in the present writ petition is as to whether a daily wager must have worked continuously from the date of his initial appointment till the commencement of Rules, 2001 and if there are certain breaks in service, he will not be entitled for regularisation.
In order to appreciate the provisions of Rule 4(1) of Rules, 2001, the same are being reproduced hereunder:
4.(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.
From perusal of the said Rules it is clear that the only requirement for the purposes of regularisation of services of a daily wager is that an incumbent should have been directly appointed on daily wage basis on Group ''D'' post in Government service before 29th June, 1991 and is continuing in service as such on the date of commencement of the Rules, 2001.
The second requirement as per Clause (b) of Rules 4(1) is that an incumbent must have possessed requisite qualifications required for regular appointment of the post at the time of such employment on daily wages basis under the relevant Service Rules.
The opposite parties have not disputed the engagement of the petitioner as a daily wager in Forest Department prior to June, 1991as well as the possession of requisite qualifications and in fact the committee of the department considered the claim of petitioner for regularisation of his services but the candidature of the petitioner was rejected on the ground of certain breaks in service.
The objection of opposite parties to the effect that these breaks will not amount to continuous service, appears to be contrary to the provisions of the Rules, 2001. Admittedly, the term "continuous service" has not been defined in the Rules. The Rules only provide that a daily wager must be directly appointed in Government service prior to June 29, 1991and is continuing in service as such on the date of commencement of Rules, 2001 and in fact the objections of the opposite parties are reading something which is not provided in the Rules. This Court while dealing with the similar controversy in a case of Janardan Yadav v. State of U.P. reported in 2008 (1) ADJ 60 pleased to observe that the incumbent must have worked continuously from the date of his initial engagement till the commencement of these Rules. The relevant para 8 of the said decision reads as under:
The said stand is contrary to the Rules and it amounts to reading certain words in Rule 4(1) which is not provided therein by the Rule framing authority. The rule framing authority has not framed the aforesaid Rules in manner as are being read by the respondents. Since the Rules are applicable only to daily wage employees, the Rules framing authority was aware that such employee could not have worked continuously throughout and, therefore, has clearly provided that the engagement must be before 29.6.1991 and he is continuing as such on the date of commencement of the Rules. If a daily wage engagement has been made before 29.6.2001 and was continuing on 21.12.2001, meaning thereby the daily wage engagement remained necessity of the department or the requirement thereof for more than 10 years, for such a person only, the benefit of regularisation under 2001 Rules has been provided, and it nowhere requires further that the incumbent must have worked continuously from the date of initial engagement till the commencement of these Rules and to read these words would amount to legislation ,which is not permissible in law. While interpreting the statute, it is well settled that neither any word shall be added nor be subtracted but if a plain reading of the statute is clear and unambiguous, the same has to be followed as such. This Court does not find any ambiguity in Rule 4(1) providing as to which kind of persons would be entitled for regularisation and it nowhere requires that the incumbent must have worked throughout from the date of initial engagement till the date of commencement of the Rules.
In view of the aforesaid analysis, this Court comes to the conclusion that the only requirement for regularisation of service of a daily wager is that an incumbent must be directly appointed on daily wage basis in Government Service before June 29, 1991 and is continuing in service as such on the date of commencement of these Rules and small breaks will not come in the way of regularisation of his services provided the incumbent fulfils other conditions of the service rules.
In the result, the writ petition succeeds and is allowed. The impugned order dated 19.5.2005, passed by respondent No. 1 is hereby quashed. The respondents are directed to re-consider the case of petitioner afresh for regularisation of his services strictly in accordance with the provisions of Rules, 2001 and pass appropriate orders within two months from the date of receipt of certified copy of this order.
No order as to costs.