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Rana Pratap Singh v. State Of U.P. And Others - WRIT - A No. 6234 of 2006  RD-AH 2534 (1 February 2006)
Heard counsel for the parties.
In this writ petition, the petitioner has prayed for quashing of the order dated 31.10.2005 appended as Annexure 8 to the writ petition and for a writ in the nature of mandamus directing the respondent no. 3 to regularize the services of the petitioner on the post of Asstt. Lineman.
The petitioner was appointed as Assistant Lineman on daily wages. The State Government framed and enforced scheme for regularization of the services of Group ''D' employees vide notification dated 21.12.2001, known as "Samuh ''Gha' Ke Padon Par Dainik Vetan Karmachariyon Ka Viniyatikaran, 2001".
The petitioner claimed regularization of his services under the aforesaid Regulations but when his representation met with inaction, he moved this Court by means of Civil Misc. Writ Petition No. 54690 of 2005-Rana Pratap Singh V. State of U.P. and others, which was disposed of directing the respondent no. 2 to decide the representation of the petitioner by a reasoned and speaking order.
The representation of the petitioner dated 31.10.2005 was thereafter considered by the concerned authority and vide impugned order, it has been held that the aforesaid Regulations for regularization of services are not applicable to the Local Bodies. The impunged order dated 31.10.2005 is in Hindi Devnagri script, as under :-
Karyalaya Nagar Panchayat Nichlaul Maharajganj
Sri Rana Pratap Singh Dwara Manniya Uccha Nyaylaya Main Preshit Yachika Sankhya 54960/05 Main Parit Adesh dinank 26.8.05 ko presit kiya gaya. Ukt Pratyavedan Yachi ko Sahayak Lineman ke pad par niyamatikaran ke sambandh main tha. Uccha Nyaylaya ke adesh ke kram main Raja Pratap Singh ko karyalaya ke patrank 1653/ma0pa0ni0/2005-06 dinank 22.10.05 dwara samastha abhilekhon ke sath Adhisashi Adhikari Nagar Panchyat Nichlaul Maharajganj ke samaksha dinank 31.10.05 ko upasthit hone ki suchna agrasarit ki gayee. Suchit hone par yachi SriRana Pratap Singh dwara bataya gaya ki mere paas koi abhilekh nahin hai jo bhi abhilekh hoga wah karyalaya main maujud mere file main hoga. Chairman Nagar Panchayat Nichlaul Maharajganj dwara ukta prakaran par Adhisashi Adhikari Nagar Panchayat Nichlaul Maharajganj ko sunwai o nirnay dene hetu namit kiya gaya. Nagar Panchayat Nichlaul main Sri Rana Pratap Singh ki niyukti dainik vetan bhogi ke roop main dinank 1.7.70 ko hui hai. Rana Pratap Singh sambandhit Nagar Panchayat main anwarat karya kar rahe hain. Rana Pratap Singh ne Manniya Uccha Nyaylaya main Sahayat Lineman ke pad par niyamatikaran ke sambandh main yachika prastut kiya. Yachi ne apne yachika main viniyamatikaran niyamawati 2001 rajyaadhin sewa main karya kar rahe dainik vetan niyuktiyon ke viniyamatikaran ke sambandh main jaari samjha hai. Nagar Panchayat Nichlaul sthaniya nikai hai. Atha ukta viniyamatikaran niyamawati 2001 sthaniya nikai main karyarat dainik vetan bhogi karmachariyon par prabhawi nahin hain.
Sri Rana Pratap Singh Dainik Vetan Bhogi karmi ke samastha varnit pahaluo evam sasanadesh par vichar karne ke uprant main is abhimat ka hun ki sthaniya nikay ke dainik vetan bhogi karmachariyon ke viniyamatikaran ke sambandh main sashan dwari ko spastha nirdesh/sasanadesh uplabdha na hone ke karan is star par Rana Pratap Singh ko Sahayak Lineman ke pad par viniyamatikaran nahin kiya ja sakta hai. Sthaniya Nikai se sambandhit shashan ka spastha nirdesh/sasanadesh prapta hone par viniyamatikaran kiya jayega. Ukta nirnay ki suchna Rana Pratap Singh ko di gai.
Nagar Panchayat, Nichlaul,
Jila Maharajgaj 31.10.2005"
Aggrieved by the aforesaid order, the petitioner has come up in this writ petition.
It is contended by counsel for the petitioner that the petitioner was appointed on 1.7.1990 and was in service on 29.6.1991, hence he is entitled to be considered under the aforesaid Regulations. Paragraph 4 of the aforesaid Regulations provides that those daily wage employees who are in Government service on or before 29.6.91and have been in continuous service from the date of the enforcement of the aforesaid Regulations would be entitled to be considered for regularization.
Relying upon paragraph 8 of the writ petition wherein it has been averred that the petitioner is working as class IV employee (Asstt. Lineman) in the Nagar Panchayat Nichlaul District Maharajganj continuously for more than 15 years nevertheless his services have not been regularized, it is submitted that petitioner is entitled to be regularized in pursuance of the aforesaid Regulations.
The counsel for the petitioner also relied upon paragraph 18 of 20 of the decision of Hon'ble the Supreme Court in Comptroller and Auditor General of India and another v. K.S. Jagannathan and another - (1986)2 SCC-679. In paragraph 18 of the judgment, it has been held that under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs for the enforcement of Fundament Rights conferred by Part III of the Constitution or for any other purpose. In paragraph 20 of the aforesaid decision, it has been held that:-
"20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a Statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
From the perusal of the decision of Hon'ble the Apex Court, it is crystal clear that High Court can exercise discretion in proper cases, i.e., jurisdiction under Article 226 of the Constitution is discretionary.
There is no specific averment in the aforesaid paragraph that the petitioner was in continuous service without any break till the endorsement of the aforesaid Regulations, i.e. 21.12.2001.
The fact whether the petitioner was continuously working on daily wage basis, without any break or he was engaged from time to time with break in service is a matter of fact which can only be ascertained after consideration of oral and documentary evidence adduced by the parties by an industrial adjudicator.
I am afraid, prayer for regularization of services cannot be granted in view of decision of Hon'ble Apex Court in State of Punjab and another V. Sardara Singh 1998 (9) SCC-709.
A Full Bench of this court in Chandrama Singh V. Managing Director U.P. Co-operative Union Lucknow and others- (1991)1UPLBEC(2)-898 has held that remedy under the Industrial Disputes Act is efficacious remedy. The petitioner being a workman may approach Labour Court or the Industrial Tribunal, as the case may be.
Hon'ble the Supreme Court has, in catena of cases, held that when alternative and efficacious remedy is available and findings of facts are required to be recorded, which is possible only after appreciation of documentary and oral evidence to be adduced by the parties, High Court should not exercise jurisdiction under Article 226 of the Constitution. Reference in this regard may be made to the decisions in Hindustan Steel Works Construction Ltd. and another V. Hindustan Steel Works Construction Ltd. Employees Union -(2005)6 SCC-725 and U.P. State Spinning Co. Ltd. V. R.S. Pandey and another -(2005)107 FLR-729.
I am, therefore, of the considered view that this case is not a fit case for exercise of discretionary power under Article 226 of the Constitution of India as findings of facts are required to be recorded on the basis of oral and documentary evidence which is not feasible in writ jurisdiction.
For the reasons stated above, the writ petition fails and is dismissed on the ground of availability of alternative remedy. No order as to costs.
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