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Janardan Yadav v. State Of U.P. Thru' Secry. Forest Dept. Govt. Of U.P. & Ors. - WRIT - A No. - 38170 of 2005 [2007] RD-AH 18864 (14 December 2007)

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Court No. 32

Civil Misc. Writ Petition No. 38170 of 2005

Janardan Yadav


State of U.P.

Hon'ble Sudhir Agarwal, J.

Heard Sri D.K. Tripathi, holding brief of Sri Sunil Kumar Srivastava, learned counsel for the petitioner and learned standing counsel for the respondents.

The facts in brief are that the petitioner was engaged as a daily wage Class-IV employee in Forest Department in July 1984 and has been continuing. On the promulgation of Rules, "U.P. Regularization of Daily Wages Appointment on Group ''D' Posts Rules, 2001" (hereinafter referred to as ''Rules 2001') his matter was considered for regularization by the competent authority but vide impugned order dated 10.9.2004, his claim for regularization has been rejected on the ground that in the year 1993-94, 98, 99, 2000 and 2001, he worked for certain period which did not amount to continuous working in service throughout though under Rules 2001 he was required to work continuously.

Learned counsel for the petitioner submits that the impugned order is totally illegal and has misapplied Rule 2001 inasmuch the only requirement to attract regularization under Rules 2001 are those conditions as provided under Rule 4(1), but the respondents in rejecting the claim of the petitioner have incorporated a condition which did not exist in the said Rules.

The respondents have filed counter affidavit wherein the facts as stated are not disputed, but it is said for the purpose of attracting regularization under Rules 2001, one must have worked continuously throughout and the only break permissible is holidays and not otherwise. In this view of the matter, it is said that the claim of the petitioner has rightly been rejected.

Since the facts are not is dispute and it is also not disputed that the petitioner was engaged on daily wage basis in 1984, i.e., before 29.6.1991 and was also working on the date of commencement of Rules 2001, i.e, on 21.12.2001, thus it is evident that he was entitled to be considered for regularization under the said Rules. The only question up for consideration is whether the said Rules require continuous service throughout, i.e., from the date of initial engagement till the commencement of the Rules. In my view, there is no such requirement under the Rules as is apparent from perusal thereof. Rule 4(1) of Rules 2001 is reproduced as under:

"4. Regularisation of daily wages appointments on Group ''D' posts.- (1) Any person who-

(a)was directly appointed on daily wage basis on a Group ''D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and

(b)possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group ''D' post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders."

The only requirement under Rule 4(1)(a) are that the incumbent was directly appointed on daily wage basis on a Group 'D' Post in a Government Service before 29.6.1991 and is continuing in service as such on the date of commencement of the said Rules. The further requirement under Clause (b) of Rule 4(1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis.

Respondents have not disputed the existence of all the said three conditions but their further presumption is that the Rules also contemplate continuous service throughout from the date of initial engagement till the date of commencement of the Rules and only then a person appointed on daily wage basis would be entitled for regularization. It is also the stand of the respondents, which is evident from para-20 of the counter affidavit, which reads as under :

"20. That the contents of para 23 of the writ petition is not correct and denied. As stated the petitioner is continuously working relates to, the working of a daily wager without any break as there is no break mentioned in the regularization rules. The petitioner or a daily wager has to work through out year except on the national holiday."

The said stand is contrary to the Rules and it amounts to reading certain words in Rule 4(1) which is not provided therein by the Rule framing authority. The rule framing authority has not framed the aforesaid Rules in manner as are being read by the respondents. Since the Rules are applicable only to daily wage employees, the Rules framing authority was aware that such employee could not have worked continuously throughout and, therefore, has clearly provided that the engagement must be before 29.6.1991 and he is continuing as such on the date of commencement of the Rules. If a daily wage engagement has been made before 29.6.2001 and was continuing on 21.12.2001, meaning thereby the daily wage engagement remained necessity of the department or the requirement thereof for more than 10 years, for such a person only, the benefit of regularization under 2001 Rules has been provided, and it nowhere requires further that the incumbent must have worked continuously from the date of initial engagement till the commencement of these Rules and to read these words would amount to legislation, which is not permissible in law. While interpreting the statute, it is well settled that neither any word shall be added nor be subtracted but if a plain reading of the statute is clear and unambiguous, the same has to be followed as such. This Court does not find any ambiguity in Rule-4(1) providing as to which kind of persons would be entitled for regularization and it nowhere requires that the incumbent must have worked throughout from the date of initial engagement till the date of commencement of the Rules.

In the result, the writ petition succeeds and is allowed. The impugned order 10.9.2004, Annexure-5 to the writ petition, is quashed. The respondents are directed to re-consider the case of the petitioner for regularization in accordance with 2001 Rules and the observations made hereinabove, afresh, and pass appropriate order within three months from the date of production of certified copy of this order.

Dt. 14.12.2007



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