Ram Prakash vs State of U.P. and Another

Rajiv Sharma, J.—The Petitioner was engaged as daily wager on the post of Clerk in the department of Madya Nishedh, U.P. on 20.7.1988. He worked continuously till 4.7.1989. He was disengaged vide orders on order-sheet by the competent authority (wherein it is noted that) in view of the G.O. dated 4.7.1989 the services had came to end. The copy of the said order-sheet is annexed as Annexure-2 to the writ petition. This Court by means of order dated 1.9.1989 has been pleased to stay the operation of the order dated 4.7.1989 contained in Annexure-2 to the writ petition. It has been stated in the writ petition that since the Petitioner has worked continuously for 240 days and as such his termination is arbitrary and against the settled principles of law. It has further been stated that the department is an industry and he has also relied on the experience certificate which has been issued under the signatures of officer dated 27.7.1989, wherein it has been stated that the Petitioner has worked from 20.7.1988 to 4.7.1989 as Daily Wager on the post of Clerk at Drug Control Department, Jawahar Bhawan, Lucknow. It has further been stated that his work and conduct is excellent. In spite of the aforesaid certificate, the Petitioner was disengaged from signing attendance register since 5.7.1989 onwards though he was given assurance that he may be allowed to resume his duties shortly. He has stated that under similar circumstances Harish Kumar Tewari was also disengaged and he has preferred Writ Petition No. 6628 of 1989, in which the Petitioner has prayed for quashing of order dated 4.7.1989 and an interim order has been passed in his favour, a copy of which is annexed as Annexure-3 to the writ petition.

Counter-affidavit has been filed along with the application for vacation of the interim order on 7.1.1991.

Learned standing counsel submits that in view of the Government Order No. 33 PADS/26.1.1989 dated 4.7.1989, the Petitioner has been disengaged from service, which has been annexed as Annexure-CA1 to the counter-affidavit, wherein it has been stated that inspite of ban on engagement of persons on daily wages you have engaged persons as daily wager and as such it is not possible to either regularize their services nor the approval be granted. Accordingly, you immediately disengage the aforesaid persons and inform the Government thereafter. It has further been urged that the department is not an industry in so far as the same is performing the sovereign functions. No rejoinder-affidavit has been filed to the said counter-affidavit till date.

A perusal of the record it transpires that the instant writ petition was also dismissed for want of prosecution on 25.11.2003 and the interim order was discharged. On an application for restoration, order dated 25.11.2003 was recalled on 14.9.2004. Thereafter, the said writ petition was again dismissed for want of prosecution on 9.11.2004, which was restored by means of order dated 25.1.2005. It has been stated by learned Counsel for the Petitioner that the Petitioner has been still working as Daily Wager on the basis of the interim order passed by this Court and he claims that his service may be regularized in view of the provision of the U.P. Regularization of Daily Wages Appointment on Group C Posts (outside) the Purview of the U.P. Public Service Commission Rules, 1998.

He further urged that in view of the provisions of Rule 4 the Petitioner is eligible for consideration for regularization of his service as he fulfils all the conditions prescribed therein but the opposite party had not considered the same.

Admittedly, the Petitioner, who has been appointed as daily wage basis, has neither any legal right nor any claim for regularization of his service in view of the law laid down by Hon''ble the Apex Court in the case of Nazira Begum Lashkar v. State of Assam ; Jawaharlal Nehru Krishi Vishwa Vidyalaya v. Bal Kishan Sone ; Ashwani Kumar v. State of Bihar ; Arundhati Ajit Pargaonkar (Dr.) v. State of Maharashtra ; J & K Public Service Commission v. Dr. Narinder Mohan and Surinder Singh Jamwal (Dr.) v. State of J & K,and the recently pronounced in the case of A. Umarani v. Registrar, Co-operative Societies, 2004 (7) SCC.

The provisions of Rule 1998 came into force but the benefit of the same cannot be granted to the Petitioner in view of the decision pronounced by the Hon''ble Supreme Court judgment rendered in the case of Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur and Anr. v. Sree Kumar Tiwary and Anr. (1997) 2 UPLBEC 1133, wherein the Supreme Court held that:

the question is: whether the Respondent was continuously serving the institution under Clause (c) of Section 33B(i)? Admittedly, the service of the Respondent came to be terminated w.e.f. June 30,1988. Though he had obtained the stay order and continued to be in service, it was not by virtue of his own right under an order of appointment he continued in the office with permission of the management. In fact, in the recommendation made before the Selection Committee, they have stated as under:

Ad hoc appointment of Shri Sri Kumar Tiwari was made on 1.8.1986 L.T. Grade and vide notice dated 30.5.1988 his services were terminated. On the basis of the above order Shri Sri Kumar Tiwari obtained stay order No. 13565 dated 29.7.1988 from Hon''ble High Court. Therefore, appointment is disputed." (Para 6) In fact, the regularization order passed by the District Inspector of Schools also says that it was subject to the result in the writ petition. The appeal being the continuation of the writ petition, the question arises whether the Respondent is entitled to claim the benefit of Section 33B (1) (a) (i) of the U.P. Secondary Education Services Commission Act, 1982. It is seen that his services came to be terminated on May 30, 1988 and the Amendment Act has no application. Hence, the Division Bench was not right in giving direction that his regularization will be subject to the further orders since the regularization order itself mean that it was subject to the result of writ petition.

The above law laid down by the Supreme Court has also followed in the case of Guru Datt Shukla Vs. State of U.P. and others, wherein in para 10, this Court has observed thus:

Even assuming the Petitioner having obtained interim stay order on 15.9.1996 in Writ Petition No. 30855 of 1996 filed by him challenging the selection of Respondent No. 6 and the said writ petition having been dismissed the Petitioner cannot claim any benefit on the basis of interim stay order granted in the said writ petition of continuing in service for the purpose of regularization u/s 33C of the Act. In Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur, through its Manager and another Vs. Sree Kumar Tiwary and another, the Hon''ble Supreme Court held that the benefit of regularization u/s 33B (I) of U.P. Secondary Education Services Commission Act, 1982 was not available on the strength of stay order granted by the High Court in the writ petition in favour of the Petitioner. A teacher, who continues in service on the basis of the interim stay order granted by the High Court, cannot be treated as has been continuously serving the institution entitling him to avail all the benefits of third Removal of Difficulties Order. The continuance in service must be in his own right. Had the Petitioner not obtained stay order, Respondent No. 6 was entitled to continue in service. The Petitioner had filed the writ petition challenging the selection. The writ petition has been dismissed in view of the decision given by the Division Bench in Balak Singh Kushwaha v. State of U.P. and Ors. 1997 AWC 25 : 1998 (3) ESC 1970: 1999 (1) LBESR 249 (All).

The above law laid down by the Supreme Court has also been followed in the case of Ouseph Mathai and Others Vs. M. Abdul Khadir, wherein the Hon''ble Supreme Court has held that stay granted by court, held, does not confer a right upon a party and is always granted subject to the final outcome of the case and at the risk and costs of the party in whose favour it is awarded- Extension of a statutory protection cannot be claimed on basis of a stay order.

In view of the law laid down by Hon''ble the Apex Court and followed by this Court, the Petitioner who has been disengaged on 4.7.1989 and thereafter on the basis of the interim order continued to work in the department is not entitled for the benefit of the regularization in view of the provision of the U.P. Regularization of Daily Wages Appointment on Group C Posts (outside) the Purview of the U.P. Public Service Commission Rules, 1998, which came into force as no right is created in favour of the Petitioner on the basis of the interim orders.

However, the Petitioner has worked since 20.7.1988 and thereafter, under the interim order of the court during the pendency of the writ petition and as such in the ends of justice, it is provided that in case the Petitioner moves a representation before the competent authority for regularization of his service, the competent authority shall consider the same and dispose it of expeditiously say within a period of three months from the date a certified copy of this order is produced before him.

With those observations, writ petition is disposed of finally.