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Prakash Narain Sirothia v. Divisional Forest Officer And Others - WRIT - A No. 31684 of 2000  RD-AH 583 (9 January 2006)
Court No. 9
1. Civil Misc. Writ Petition No. 31684 of 2000
Prakash Narain Sirothia
Divisional Forest Officer and others
2. Civil Misc. Writ Petition No. 42407 of 2002
Prakash Narain Sirothia
Divisional Forest Officer and others
Hon'ble Sunil Ambwani, J.
1. Heard Shri Pankaj Srivastava for petitioners and learned Standing Counsel in both the writ petitions.
2. The petitioner worked as 'Watcher' on daily wages in Forest Department. His first writ petition No. 23464 of 1994 connected with seven other writ petitions was allowed by Hon'ble S.K. Kishote, J. on 21.7.1994, with directions to the respondents, to take necessary step for regularisation of his daily waged appointment. It appears that, in pursuance of the directions, the petitioner and other similarly situate persons in other writ petitions were regularised by Deputy Ranger of Forests vide order dated 22.10.1995. The Department, however, filed a Special Appeal against the judgement of Hon'ble S.K. Keshote, J. which was disposed of on 25.3.1996 with directions that petitioner may be considered for regularisation in terms of U.P. Regularisation of Adhoc Appointments (On Posts Outside the Purview of U.P. Public Service Commission) Rules 1979, the then existing statutory rules, and other reliefs with regard to salary. There was a stay during the pendency of the Special Appeal during which the order of regularisation of petitioner's services dated 22.10.1995, was put in abeyance. The order in Special Appeal dated 25.3.1996 was challenged by the Forest Department in Special Leave Petition No. 16823-834 of 1996 in which following order was passed on 21.2.1997;
There will be stay of the operation of the impugned
judgement. This will not prevent the State from regularising the vacancies as and when they arise in accordance with Rules"
3. On 5.3.1999, the Divisional Forest Officer, Jhansi Forest Range, Jhansi, put the petitioner back in the same position as he was prior to the issuance of the regularisation order and consequently the petitioner continued to serve as Watcher on daily wages.
4. On 10.2.1999, the petitioner was given a show cause notice alleging that on an inspection made on the same day, he was found to be grossly negligent in performance of his duties, he was found absent and had caused damages to the plantations. The petitioner refused to receive this notice. On 26.3.1999 another inspection was caused by Forest Range Officer, Chirgaon, District Jhansi alleging that the petitioner was found absent, the plantations were illegally cut and that the petitioner was not performing the duties assigned to him. His services were terminated with effect from the date of notice. The petitioner refused to receive this order, as well.
5. The petitioner filed Writ Petition No. 31684 of 2000 challenging the order dated 26.3.1999, by which his services were terminated. The writ petition was dismissed on 12.12.2003 on the ground that a daily wager has no right to hold the post and that his services were not satisfactory. He had shown carelessness and deficiency in working as well as damage to the plantations. This order, however, was recalled on 19.2.2004, as petitioner's counsel was not present on the date of hearing. On the other occasion the writ petition was dismissed in default on 8.11.2005, and was restored on 8.11.05.
6. A Special Leave Petition filed by the petitioner was clubbed with other similar cases and that the entire forest bunch was decided by Supreme Court in State of U.P. vs. Puti Lal and others
on 21.2.2002. The Supreme Court noticed that by this time the U.P. Regularisation of Daily Waged Appointments on Group 'D' Posts Rules 2001, with cut of date as on 20.12.2001 had come into force, and directed that all the petitioners be reconsidered for regularisation under the new Rules of 2001.
7. The petitioner was considered for regularisation in accordance with the Rules of 2001. His representation was rejected on the ground that he was not working on the cut of date i.e. 20.12.2001. The petitioner has now challenged these orders in Writ Petition No. 42407 of 2002.
8. The petitioner was regularised in terms of orders of Hon'ble Mr. Justice S.K. Keshote dated 21.7.1994. These orders were, however, substituted by the orders passed in Special Appeal by which the petitioner was directed to be considered for regularisation in terms of the Rules of 1979. The orders of Special Appeal were stayed by the Supreme Court on 21.2.1997. The petitioner as such continued to serve on daily wages with effect from the date when his services were terminated on the ground of absence without authorisation, failure to perform his duties, and damage to plantations. Until the termination order is set aside, the petitioner could not be considered for regularisation under the Rules of 2001.
9. Coming to the merit of the writ petition No. 31684 of 2000, I find that the petitioner did not give any reply to the charges levelled in the notice. In his legal notice given by him through Shri S.K. Gupta, Advocate dated 11.1.2000, he did not deny that he was absent and that he had not performed the duties assigned to him in taking care of the plantations. In the writ petition and amendment application, there is absolutely no averment, denying the charges or any explanation to the allegations . There is no suggestion either that the orders were passed to victimise him or to pick him out of
the lot to refuse regularisation of his services.
10. Shri Pankaj Srivastava submits that similarly placed persons filed writ petitions and received the benefit of stay orders from this Court and have been regularised on the ground that they were working on 20.12.2001.
11. The petitioner is out of employment since 26.3.1999. He was not working for almost two and half years on the cut of date under the Rules of 2001 and thus he cannot be given the benefit of consideration of regularisation.
12. Learned counsel for petitioner submits that gross injustice has been caused to the petitioner. He was working on daily wages since 1985, and has been rendered unemployed on account of malafides in terminating his services. I have made an attempt to search the entire record, to find out whether the petitioner had denied or offered an explanation to the allegations in the show cause notice dated 20.2.1999 and the order dated 26.3.1999 by which his services were terminated. I do not find any averment on record which may have justified his conduct. The order dated 26.3.1999 terminating his services as daily wages as such does not call for interference. A daily wager has a right to continue so long as he performs satisfactory work. If the empower is not satisfied with his work and conduct, he has no right to continue, unless the termination order suffers from 'gross arbitrariness, malafides or are passed for oblique purpose. On the cut of date in the Regularisation Rules of 2001 the petitioner was not in daily waged employment. He was not working since 26.3.1999, and thus he was not entitled to be considered for regularisation of his services.
13. In the facts and circumstances both the writ petitions are dismissed.
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