Shiv Narain vs State of U.P.and Others

Devi Prasad Singh, J.—Heard learned counsel for the petitioner and the learned Standing Counsel.

The brief facts giving rise to the present petition are that the petitioner was appointed as Mali on daily wage basis on 25.2.1991 by the opposite party No.2. Since February 1991, the petitioner is continuously discharging duty. Under Regularisation Rules, all those persons, who were appointed before 29.6.1991, shall be entitled to be considered for regularization. Undoubtedly, the case of the petitioner is covered under the Regularisation Rules. Earlier, the petitioner had approached this Court by preferring a Writ Petition No.6507 (S/S) of 2006, which was decided finally by vide judgment and order dated 31.7.2006 whereby the respondents were directed to decide the petitioner''s representation. Now, by impugned order the representation of the petitioner has been rejected on the ground that in absence of sanctioned post of Mali, the petitioner cannot be regularized. The other ground indicated in the impugned order is that on account of the fact that the petitioner was appointed for a limited period to meet out exigencies of services, no good ground exists for his regularization.

While assailing the impugned order, learned counsel for the petitioner submits that since the case of the petitioner was covered under the Regularization Rules and he was appointed prior to cut of date i.e. 29.6.1991, he is entitled for regularization. In case, there is no vacancy, the post should be created in view of the fact that the petitioner has served more than 17 years.

On the other hand, learned Standing Counsel submits that in view of law laid down by Hon''ble Supreme Court in a case reported in 2006 (4) SCC 1; Secretary, State of Karnataka and others v. Uma Devi and others, no right accrues to the petitioner even to consider for regularization.

I have given my anxious consideration to the argument advanced by the learned counsel for the parties.

The State Government had framed Regularization Rules namely, �The Uttar Pradesh Regularisation of Daily Wages Appointment on Group ''D'' Posts Ruels, 2001" (for short ''Rules''). Rule 2 of the aforesaid Rules provides that it will have overriding effect and the Rule 4 of the Rules provides that all those incumbents, who were appointed prior to 29.6.1991, shall be entitled to be considered for regularization. Rule 4(a) of the Rules further provides that all those incumbents, who were continuing as Daily Wager prior to 29.6.1991 and were continuing in service as such on the date of commencement of such Rules, shall be entitled for regularization. In the present case, there is no dispute that the petitioner was continuing as Daily Wager on 29.6.1991 and only because of the fact that the petitioner was getting fixed pay shall not create a ground for the opposite parties to deny the benefit of Regularization Rules. Since the petitioner has continuously discharged duty w.e.f. 25.2.1991 on the post of Mali, his case seems to be squarely covered under the Regularization Rules and makes him entitled to be considered for regularization.

So far as the sanctioned post of Mali is concerned, that aspect of the matter should be looked into by the State Government and since keeping in view the fact that the petitioner is working continuously for more than 17 years on the post of Mali, it shall be appropriate that the State Government should create or sanction a post of Mali so that the petitioner may be considered for regularization and may get regular pay scale. The impugned order seems to have been passed on unfounded grounds and the State has failed to exercise jurisdiction vested in it. Accordingly, the writ petition deserves to be allowed.

The writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 15.2.2007 (Annexure No.1 to the writ petition) with consequential benefits. The opposite parties are directed to consider for creation of a regular sanctioned post of Mali so that the petitioner may be considered for regularization. Respondents are further directed to permit the petitioner to continue in service and pay him minimum pay scale admissible to his cadre till his services are not considered for regularization in accordance to Rules.

The writ petition is allowed accordingly. No order as to costs.

(Petition allowed)