SRINIWAS Vs. STATE OF U P

JUDGEMENT

(1.) 1. Heard Sri B. P. Singh, learned counsel for the petitioner and the learned Standing counsel for the respondents. The petitioner was appointed on daily wages as Registration Clerk on 12.2.1990. His services were terminated by an order dated 15.3.1991. The said termination order was challenged by the petitioner in Writ Petition No. 8322 of 1991 and by virtue of the interim stay order dated 20.3.1991, it was provided that the working of the petitioner on the post of Registration Clerk shall not be disturbed till a regular selected candidates are made available for appointment on the post. In view of the above interim order, petitioner continued to work from 19.4.1991 till 19.3.1995 and the writ petition was finally dismissed on 8.2.1995. The judgment and order of the High Court dismissing the writ petition was assailed before the Supreme Court through a SLP. Large number of similar SLP were clubbed together and were finally decided by the Supreme Court vide judgment and order dated 27.9.1995 reported in 1996(1) UPLBEC 23 Khagesh Kumar & Ors. Vs. Inspector General of Registration & Ors., and directions were given to consider the petitioner and other persons before the Supreme Court for regularisation provided they have completed three years continued service. In pursuance thereof the petitioner on 4.12.1995 represented for his regularisation but his representation was rejected on 29.8.1996. This order was challenged by the petitioner by means of the Writ Petition No. 8946 of 1996, which was allowed by the High Court vide judgment and order dated 1.2.2001. The order rejecting the representation was quashed and the authorities were commanded to consider the candidature of the petitioner for regularisation on the basis of his working during 19th April 1991 to 19th March 1995 keeping in mind the decision of the Apex Court in the case of Khagesh Kumar & Ors. (Supra). It was also directed that the petitioner will not be thrown out of service, in case, there is nothing against him and in case, juniors to the petitioner have been allowed to continue on daily wages. On the basis of the aforesaid judgment of the High Court, the petitioner submitted a fresh representation on 17.3.2003 for regularising his services but the same has again been rejected vide impugned order dated 9.2.2004. The petitioner has been refused regularisation on the ground that he is not covered by the U.P. Regularisation of Ad hoc Appointments (on the post outside the purview of U.P. Public Service Commission) Rules, 1998 and secondly he was not working on or before 1.1.1986 which is the cut off date held to be applicable for regularisation by the Supreme Court in the case of Khagesh Kumar & Ors. (Supra). Further it was held that there is no work in the department for daily wages employees and, therefore, there is no requirement of daily wages employees and for regularising their services. Sri B.P. Singh, learned counsel for the petitioner has placed reliance upon the decision of this Court dated 11.5.2004 in Writ Petition No. 27230 of 2003 (Ramveer Singh Vs. State of U.P. & Ors.) and 78 other connected writ petitions relating to the services of daily wages employees of the registration department itself. The Court while dealing with the validity of the termination order of the daily wages employees of the department and considering the directions of the Supreme Court in the case of Khagesh Kumar & Ors. (Supra) recorded that the department is avoiding implementation of the orders and the directions of this Court as well as the Apex Court in the case of Khagesh Kumar & Ors. (Supra). Large number of vacancies of clerks have occurred during the last 13 years and the post are lying vacant despite advertisement for filling up 190 such vacant posts. In spite of the above services of the daily wagers working as clerk are sought to be terminated on the ground that there is no work and vacancy, which stand was found to be falsified. Accordingly the action of the department was held to be contemptuous but one more opportunity was granted to the authorities to comply with the orders and directions of the Supreme Court for which purpose fresh guidelines were issued by the High Court, which is as under:

(2.) A perusal of the judgment of the Supreme Court and the direction contained therein it is clear that all those employees who have worked for three years were to be considered for regularisation irrespective whether they were working on or before 1.10.1986. Therefore, the rejection of the petitioner's representation on the ground that he was not working on 1.10.1986 is misconceived and is not according to the letter and spirit of the judgment of the Supreme Court in Khagesh Kumar & Ors. (Supra). Admittedly, the U.P. Regularisation of Ad hoc Appointments (on the post outside the preview of the U.P. Public Service Commission) Rules, 1998 were not in force when the cause of action for considering the regularisation of the petitioner had arisen i.e. in respect of the period of working of the petitioner from 19th April 1991 to 19th March 1995. Therefore, the representation of the petitioner had been erroneously rejected on the aforesaid ground also. Last but not the least the stand of the department that there is no work and vacancy for regularising the services of the petitioner has found to be false by the High Court in the above noted decision which is said to be final and conclusive as on date and as such ever this ground was not available to reject the representation. Therefore, in the facts and circumstances, the representation of the petitioner for regularisation has not been considered and decided in the right perspective.

(3.) As far as the second prayer made by the petitioner to allow him to function as daily wager, it cannot be considered directly by the Court in exercise of the writ jurisdiction. There is no discussion in the impugned order with regard to it and it appears that no such prayer was made and pressed by the petitioner in his representation. However, it shall be open for the petitioner to make a claim/representation with regard to his continuance in service before the Inspector General.