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BHEJOO versus DY. DIRECTOR, SOCIAL FORESTRY, BASTI & OTHERS

High Court of Judicature at Allahabad

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Bhejoo v. Dy. Director, Social Forestry, Basti & Others - WRIT - A No. 7643 of 1996 [2004] RD-AH 120 (4 March 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 23

Civil Misc. Writ Petition No. 7643 of 1996

Bheju

Vs.

Deputy Director, Social Forestry, Basti and others.

*****

Hon'ble V.C. Misra, J.

Heard Sri D.P. Srivastava, learned counsel for the petitioner and Sri V.N. Agrawal, learned standing counsel for the respondents.  

The case of the petitioner, who belongs to the category of Scheduled caste, is that he was initially appointed on 22.3.1982 at Gayghat Plantation as Mali on daily wage as Class IV employee under the supervision of respondent no.1 and since then is continuously working till date. The petitioner moved several representation in writing to the respondents to regularize his services as he had been continuously working and was entitled for regularization in accordance with rules and procedure laid down for the regularization of daily wagers, wherein maximum period of 3 years has been fixed. The petitioner was placed at Serial No.5 in selection list dated 28.10.1994.  The last representation was made on dated 5.12.1995 through registered post, but still no action was taken.  Being aggrieved by the inaction on the part of the respondents, the petitioner filed this writ petition.

It has also been submitted by the learned counsel for the petitioner that his services ought to have been regularised according to the provision of U.P. Regulation of Daily Wages Appointment On Group ''C' Posts (outside the Preview of the U.P. Public Service Commission) Rules 1998 modified and amended from time to time. Learned counsel for the petitioner has relied upon a judgment passed by a Division Bench of this Court in Special Appeal No. 653 of 1995, reported in 1998 (1) UPLBEC, 313 State of U.P. & others Vs. Putti Lal.

On the request of learned counsel for the respondents time was granted on 28.2.1996 by this Court to file a counter affidavit within six weeks and keeping in view the order passed in the Special Appeal No. 710 of 1995, an interim order was granted providing that the petitioner's services shall not be terminated save on the ground connected with suitability and misconduct and that he shall be paid his wages regularly.  It was also clarified that upon any adverse decision being taken in the aforesaid Special Appeal or in the event of the petitioner not being found suitable for regularization the interim order would stand discharged.

A counter affidavit dated 29.11.1996 has been filed.  In this counter affidavit in paragraph 5 and 6, it is specifically denied that the petitioner was appointed on the post of Mali in class IV category and it has also been denied that he was appointed on 22.3.1983.  It has been admitted therein that the petitioner has been working as daily wager since May, 1985 and he is being paid his wages accordingly.  At the time of filing of the writ petition he was working at Captainganj Range, village-Bhatha with Gramsmaj Plantation as a daily wager, and it has also been admitted that looking into the work, the petitioner must have worked more 240 days in a year.  But since the Forest Department is not an industry so no benefit can be claimed by the petitioner on the basis having worked as a daily wager for three years and 240 days in a calendar year.  It has also been specified that the petitioner was not posted in any department nor any appointment letter was issued to him in accordance with rules applicable for regularization.  A copy of the judgment dated 24.5.1996 passed in the Special Appeal No. 371 of 1995, State of U.P. through Secretary Forest Anubhag-3 Govt. of U.P. Secretariat, Lucknow and others Vs. Shiv Babu Garg has been filed as Annexure-CA-1 to the counter affidavit.  The Special Appeal was allowed and the order of the learned Single Judge was set aside with a direction that the respondents shall consider the case of the petitioner for regularization of the services of the petitioner in accordance with rules and regulation, applicable for the appointment and in accordance with the observation made therein within three months.

Looking into the facts and circumstances of the case and the entire documents on the record, I find that the case is fully covered by the various judgments passed by this Court and by Hon'ble Supreme Court for example in Chief Conservator of Forest Vs. Jagannath Maruti Kondhare, 1996 Labour Industrial Cases page 967 wherein it has been held that Forest Department is an industry and casual/daily wagers are workmen under the Industrial Disputes Act, 1947.  Specifically, in the case of Khagesh Kumar and other Vs. Inspector General of Registration and others (1996) 1 UPLBEC, 23, wherein the daily rated workers claimed regularization of their services on the ground that they had worked for more than three years.  The Hon'ble Supreme Court has held that the regularization of such daily wagers could be done only in accordance with the provision of Rule 4 of U.P. Regularization of Ad hoc Appointments (on post outside Purview of the Public Service Commission) Rules 1979 and the Rules provide detailed procedure for regularization and in regard to those who were not entitled for regularization under the Rules, it was directed that they may be considered for appointment at the time of regular recruitment taking into consideration their past experience.

In view of the observation made hereinbefore, the petitioner is entitled for being regularised in accordance with law. Consequently, the respondents are directed to consider the case of regularization of the services of the petitioner in accordance with the rules and regulations applicable in the case of the petitioner, preferably within a period of three months from the date of production of a certified copy of this order before the respondents.  

With this observation, the writ petition is disposed off accordingly.

No order as to costs.

Dated: 4.3.2004

pkc


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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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