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DILEEP KUMAR AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Dileep Kumar And Others v. State Of U.P. And Others - WRIT - A No. 16849 of 2004 [2006] RD-AH 8567 (28 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.26

Civil Misc. Writ Petition No. 16849 of 2004

Dileep Kumar and others

Versus

State of U.P. and others

Hon.Shishir Kumar, J.

By means of the present writ petition the petitioners have approached this Court for issuing a writ in the nature of certiorari quashing the order dated 24.12.2003 passed by the respondent No.3 (Annexure 1 to the writ petition).  Further issuing a writ in the nature of mandamus directing the respondents to regularize the services of the petitioners, who have performed their duties as daily wager since long.

The facts arising out of the present writ petition are that the petitioner No.1 was engaged on the post of Mali as a daily wager in 1973, petitioner No.2 in the year 1979 and the petitioner No.3 in the year 1980 in the respondents' office.  The post of Mali is a permanent in nature and the petitioners are continuously working on the post of Mali and have completed 240 days in one calendar year. The petitioners have made several efforts for the purposes of regularization of their services but the respondents have not paid any heed and has not considered the claim of the petitioners, then the petitioners have approached this Court by way of Writ Petition No.25444 of 2000.  The said writ petition was disposed of on 2.9.2002 by a detailed and reasoned order requiring the petitioners to make a detailed representation and the same will be considered according to law.

On the basis of the aforesaid order, the respondents have passed an order dated 12th September, 2003 by which the claim of the petitioners have been rejected and it has been stated that the petitioners do not come under the Group 'D" post and does not come under the Regularization Rules of 2001.  The petitioners were engaged as a daily agriculture labour, they are not daily wager, therefore, their services cannot be regularized.  Aggrieved by the aforesaid order, the petitioners again filed a Writ Petition before this Court, which was numbered as Writ Petition No.48631 of 2003.  The said writ petition was also decided by order dated 31.10.2003 and the impugned order dated 12.9.2003 was quashed.  This Court had directed that the reason given in the earlier order dated 12.9.2003 that the petitioners were appointed a daily agricultural labour, therefore, they are not entitled for regularization under the Rules of 2001, cannot be sustained.  The Regularization Rules apply to the daily wager employees appointed on Group ''D' posts prior to 29.6.1991 as the petitioners have claimed that they have been appointed prior to 1991, as such, this Court had directed the respondents to consider the case of the petitioners without taking into consideration the reason given in the order dated 12.9.2003.  

The petitioners submit that in spite of the aforesaid fact, again an order  has been passed on 24th December, 2003 (Annexure 1 to the writ petition).  Again the claim of the petitioners, which has already been quashed by this Court, has been rejected on the ground that as the petitioners are working as agricultural labourer, therefore, they are not covered under the Regularization Rules of 2001.  Further it has been stated that as the petitioners does not come under the consideration zone according to 2001 Rules, as such, the services of the petitioners cannot be regularized.

It has been submitted on behalf of the petitioners that twice this Court had passed this order that the nature of appointment of the petitioners are as daily wager, and they are entitled for consideration of regularization but the respondents have rejected the claim of the petitioners stating that as the appointment of the petitioners was as agriculture labour, as such, their claim cannot be considered for regularization according to Rules of Regularization, 2001.  Though this Court had already quashed the earlier order specifying that as the petitioners are working prior to 1991, as such, according to the Regularization Rules, they are entitled to be considered for regularization as the order has been passed in a mechanical manner without taking into consideration the judgment of this Court and the case of the petitioners have not been considered for regularization.

In view of the aforesaid fact, the petitioners submit that the order passed by the respondents is liable to be quashed.

The notices were issued and a counter affidavit has been filed.  In para 5 of the said counter affidavit, it has been stated that it is incorrect to say that the work of the petitioners are equal to Mali. Their work is not equal to the Mali, therefore, they are not entitled for regularization.  It has also been stated in para- 9 of the counter affidavit, that the nature of the work of the petitioners are agriculture labourer and on the basis of the work, the amount is being paid.  No post of Mali is vacant and the petitioners did not have any essential qualification for the said post, as such, the claim of the petitioners have been rejected.

I have heard learned counsel for the petitioners and learned Standing Counsel and have perused the record.

Admittedly, the petitioners have approached this Court third time and the orders passed by the respondents have been set aside on the ground that such type of engagement on daily wager cannot be treated to be other than daily wager.  The respondents have admitted in their counter affidavit that the petitioners are working and they are only being permitted to continue not beyond 26 days in a month continuously.  From the record it is also clear that the earlier order passed by this Court has been set aside and this Court had clearly directed the respondents to consider the case of the petitioners to examine the matter within a specific period and further direction was made that if the petitioners are working they will not be removed from service. A specific direction was also given that they will not reject the claim of the petitioners on the ground that they are not daily wager.  Admittedly, the daily wager and agriculture labour will be treated on the same footing.  The regularization rules will be applicable upon those daily rated employees, who are working prior to 1996 but in the present case, the petitioners are working continuously from 1973, 1979 and 1980.

From the orders passed by the respondents, it clearly goes to show that  the similar view taking same ground, the claim of the petitioners is rejected.  In my opinion, this is not permissible as this Court has already directed in earlier two writ petitions filed by the petitioners to consider the claim of the petitioners without taking into consideration that as the engagement of the petitioners are as agriculture labour and they does not come under the definition of daily wager and as such, not covered under the Regularization Rules, 2001, is not correct.  Admittedly, the petitioners are working by 26 to 30 years and have rendered considerable period of their service and life with the respondents.  

Now it can be inferred that if a person is permitted to continue for such a long time there will be a presumption that the vacancy and work are there.  The Apex Court in a recent judgment reported in 2006 (2) Judgment Today, Supreme Court, 1, Workmen of Bhurkunda Colliery of M/s Central Coal Field (LTd) Vs. The Management of Bhurkunda and Colliery has held that if an employee is working as daily wager for a considerable period of time more than 10 years, then there will be a presumption that work is there, as such, they are entitled to be considered for regularization.  In the present case also, the petitioner No.1 is working from 1973, petitioner No.2 is working from 1979 and petitioner No.3 is working from 1980 and the respondents in spite of the direction issued by this Court with a specific provision not to take into consideration the fact that the petitioners are not come under the Regularization Rules of 2001 and as their appointments are as agriculture labour, therefore, they are entitled to claim the regularization.

In a recent judgment reported in 2006 (4) Judgment Today, S.C.420, Secretary, State of Karnataka and others Vs. Umadevi and others, the Constitutional Bench of the Apex Court has held regarding the engagement of daily wagers and casual employees.  But taking into consideration the long period of service, the Central and State Government and their instrumentalities were directed to take steps to frame one time scheme to regularize the services of the persons appointed ''irregular'.    

In view of the aforesaid fact, I am of the view that order passed by the respondents dated 24th December, 2003 (Annexure 1 to the writ petition) cannot be sustained and is hereby quashed.  The respondent No.2 again is directed to consider the claim of the petitioners for regularization without taking into consideration that the petitioners are working on the post of agriculture Mazdoor as there is no difference between daily rated employee and daily rated Mali. The respondent No.2 will also not take into consideration that the petitioners are not covered under the Regularization Rules of 2001.

Though in the facts and circumstances of the case, this Court should have granted  relief to the petitioners for regularization without delegating the reliefs sought by petitioners for regularization to the respondent No.2 but as in view of the well-settled principle of law this Court while exercising the jurisdiction under Article 226 of the Constitution of India will not direct to regularize the service of an employee.  The only direction can be to consider the claim of regularization according to law.

In view of the aforesaid fact, the writ petition is allowed.  The order dated 24.12.2003 passed by the respondent No.3 (Annexure 1 to the writ petition) is hereby quashed and the respondent No.2 is directed to pass appropriate orders regarding consideration of regularization of the petitioners.

There shall be no order as to costs.

28.4.2006

SKD          


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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