VIRENDRA PAL SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) The present writ petition has been filed for quashing the impugned order dated 17-4-2003 (Annexure 1 to the writ petition) passed by the respondent No. 2 2. The facts arising out of the present writ petition are that the petitioner was appointed on the post of helper in work charge establishment with effect from 8-4-1969 and was promoted on the post of operator in Work Charge Establishment with effect from 1-4-1979 and since then the petitioner was working on the post of operator. It appears that most of the work charged employees filed a Writ Petition No. 140 of 1989 and other various writ petitions before the Hon'ble Apex Court and the Hon'ble Apex Court vide its judgment and order dated 18-1-1996 directed the respondents to regularize the services of the work-charged employee against the regular vacancies on the basis of seniority, work and experience. A copy of the same has been filed as Annexure 2 to the writ petition. The relevant part of the Apex Court finding is being reproduced below : "therefore, a blase has to be strike struck between the two competing interest and that can be struck by periodical revision of the cadre strength from year to year. We must also impress on the State Government that if work charged employees have been on the establishment for long periods the State should be literal in the matter of revision of the cadre strength so that the benefit of regularization is available to a reasonably good number of work charged employees who have been associated with the State Departments for long periods. We would, therefore, direct the clause `d' should be understood as taking in its fold a periodical year to year revision, of the cadre strength and besides the estimated vacancies the additional vacancies on account of the increase in the cadre strength should become available for regularization. If the figures given in paragraph 6a are perused it appears that 23 percent were engaged on work charged establishment between 1960-65, 50 percent between 1965-70, 20 percent between 1975-80 and 5 percent -between 1980-85. This would show that there are workmen on the work charged establishment who had joined between 1960-65 and who we believe, if continuing in service would certainly be required by the departments concerned and could be considered for regularization under the scheme by an increase in the cadre strength. So also one can say that the workmen working between 1965-75, if still in employment could be considered for regularization by an increase in the work force. Our emphasis is that while the State has to keep in view the financial constraints and the need for allocation of finances for development of project it should also show concern for those who are working in different departments of the State so that yet the and when they are released from service on their attaining the age of superannuation they may have something to fall back on. Keeping this in mind we think that a liberal increase in the work force for the first few years satisfy the large number of work charged employees who are working oh different projects of each departments for a number of year. " 3. The Engineer in Chief, Department of Irrigation vide order dated 2-12-1994 directed regularization of the work charge employee against Group C and D posts by 31-5-1995. It was further directed by the letter dated 4-4-1996 to the respondent authorities that the State Government has approved for appointment of Group C and D posts, against the vacant post. In view of the Government Order, services of the petitioner were regularized on the said post of Assistant Surveyor vide letter dated 5-2-1999 and the petitioner was relieved vide dated 8-2-1999 in regular establishment and the name of the petitioner appears at Serial No. 4 of the relieving order. A copy of the same has been filed as Annexures 5 and 6 to the writ petition. The petitioner was regularized keeping in view of the work, conduct and excellent service record of the service by respondent authorities. It is stated that the respondents before passing the order dated 18-2-1999 has not taken any consent of the petitioner for changing designation from operator to Assistant surveyor. The petitioner in pursuance of the order dated 18-2-1999 submitted a joining report on 19-2-1999 and it also entered in the service book that the petitioner has been regularized. It has further been submitted that before issuance of the order dated 18-2-1999 the respondent neither asked the petitioner to submit his educational certificate even from the other employees whose name has been mentioned in the order tilted 5-2-1999 and order dated 18-2-1999 has been taken. The petitioner has not concealed anything and the name of the petitioner is at serial No. 7 of the order dated 5 2 1999 by which the petitioner has been regularized. Now suddenly an order has been passed on 17th April, 2003 by which the order dated 5-2-1999 by which the petitioner was regularized has been cancelled and in the said order, it has been mentioned that as the petitioner has given some wrong information regarding his educational qualification, therefore, the order has-been withdrawn. 4. The petitioner submits that before the order dated 17th April 2003 no notice and opportunity has been given. Admittedly, the order dated 5-2-1999 has been passed after verifying the complete service record and an order was passed regularizing the service of the petitioner. It has further been submitted that in pursuance of the judgment of the Apex Court, the process was started and the various work charge employees working in the different departments have been considered and regularized. On the basis of the aforesaid direction, an order, was passed regularizing the services of the petitioner. Admittedly, the order impugned has been passed without any notice and opportunity as such the same is liable to be quashed. 5. The notices were issued and a counter and rejoinder affidavits have been exchanged, as such, the writ petition is disposed of finally. In para 7 of the counter-affidavit it has been stated that on the basis of the information given by the Superintendent Engineer under whom the petitioner was working has shown the educational qualification of the petitioner as High School and on that basis the order was passed. But subsequently, it has been found that the educational qualification of the petitioner is not correct, therefore, the order impugned has been passed canceling the regularization of the petitioner dated 5-2- 1999. 6. I have hoard learned Counsel for the petitioner and learned Standing Counsel and have perused the record. Admittedly, on. the basis of the record submitted by the respective departments and on the basis of the judgment of the Apex Court the Selection Committee was constituted and the case of the petitioner as well as other similarly situated persons have been considered. And order was passed on 5th February 1999 from the office of Chief Engineer, Madhya Ganga Nanar, Pariyojana. Irrigation Department, Aligharh regularizing the services of the petitioner. On the basis of the aforesaid order, the petitioner has joined and was working But suddenly an order has been passed which is dated 16th April, 2003, canceling the order of the petitioner dated 5-2-1999 by which the petitioner was regularized. It is not the case of the respondents that anything has been concealed by the petitioner. As the complete service record was before the respondents regarding the initial appointment as well as the educational qualification and after considering the said fact, the order dated 5-2-1999 was passed by which the services of the petitioner have been regularized. The Court has also perused the judgment of the Apex Court, which does not put a criteria that the educational qualification of a work-charge employee should be High School and if he is not High School he will not be considered for regularization. The Apex Court has taken an analogy that as the various work-charge employees are working from 1965 and their services have not been regularized, in such a situation, the Apex Court had directed to consider the work-charge and muster roll employees who have been engaged in the work Charge establishment from 1960-65, 1965-70, 1970-75, 1975-80 and 1980-85. 7. Admittedly, no notice and opportunity has been given to the petitioner before the order dated 16-12- 2003. In view of the aforesaid fact, I am of the opinion that the order dated 17-4-2003 (Annexure 1 to the writ petition) is against the principle of natural justice and therefore, liable to be quashed. The writ petition is allowed. It has further been informed that the petitioner has already retired from service, therefore, in my view there will be no fruitful purpose for remitting the matter to the respondent for taking decision as afresh. There shall be no order as to costs. Petition allowed. RAJESH .