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Ram Naresh Yadav v. State Of U.P. Thru' Principal Secy. Forest U.P. & Others - WRIT - A No. 27647 of 2002 [2005] RD-AH 925 (31 March 2005)


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Court No. 3

                      Civil Misc. Writ Petition No. 27647    of 2002

Ram Naresh Yadav


State of U.P.and others

Hon.Sanjay Misra.J.

Heard Sri Ranjeet Saxena, learned counsel appearing for the petitioner and Sri B.N.Misra, learned Standing counsel appearing on behalf of respondents.

Counter affidavit and rejoinder affidavit have been exchanged between the parties. The petitioner has claimed two sets of relief in the present writ petition. The first relief is that a writ of mandamus may  be issued directing the respondents to appoint the petitioner on the post or Range Clerk of Bharthana Range District Etawah. The second and third relief relate to the payment of arrears of salary and benefits of bonus and TA bills.

It is the case of the petitioner that he was appointed as Chaukidar on 1.1.1988. He worked upto 15.10.1984 and then from 16.10.1989 to February 1990 in Lakhana Range, Bharthana Section District Etawah . He was thereafter transferred as Dakia (postman) and from March 1990 he worked upto 31.3.1993 as Range clerk.  It is stated that the petitioner had filed Civil Misc. Writ Petition NO. 12770 of 1992 alongwith 17 others which was connected with Special Appeal No. 653 of 1995 (State of U.P.Versus Putti Lal and others) and the entire Bunch was decided on 10.12.1997 . In a Special Leave Petition filed by the State , the matter was finally decided by the Apex Court on 21.2.2002. It is stated that the services of the petitioner was orally terminated w.e.f. where after the matter remained pending before this Court and the Hon'ble Apex Court . The petitioner states  that his services were terminated orally on the ground that there is no fund available in the department. In the meantime, the State Government has framed the Uttar Pradesh Regularization of Daily Wages Appointment on Group-D Posts Rules 2001 wherein para 4 provides as under :

(b) "Governor means the Governor of Uttar Pradesh".

4(i) Any person who

(a) was directly appointed on daily wage basis on a Group ''D' post in the government ser vice 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 unless 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."

On the basis of the decision of Hon'ble Apex Court in the case of Putti Lal and on the basis of Rules 2001 , the petitioner claims  entitlement for being appointed on the said post. It is also the case of the petitioner which he has taken in the writ petition as also in the rejoinder affidavit that the persons who were appointed on daily wages much after the petitioners have been given the benefit of the aforesaid rules and their services have been regularized . The learned counsel for the petitioner submits that he has made various applications before the authority concerned seeking redressal of both grievances raised by the petitioner in this petition. However, the said application of the petitioner have gone unanswered.

A counter affidavit has been filed by the State respondent wherein it has been stated that the petitioner was not a daily wage workers with respondents and for the period of  October 1992 to March 1993 ,he has been paid the amount to which he is entitled. It has also been stated that no evidence has been led by  the petitioner nor it is available in the department ,therefore, he is not entitled to the benefit of appointment . It h as been stated that petitioner never worked as Range Clerk, he was only a daily  wager. In para 11 of the counter affidavit it has been stated that since the petitioner was not working as on the date of enforcement of the Rules 2001 ,therefore, his name was not included in the seniority list framed by  the respondents. Consequently he is not entitled to regularization which is not being claimed by  him. The respondent has denied that there is any amount due to the petitioner   from the respondents ,therefore, this writ petition should be dismissed .

Rejoinder affidavit has been filed by  the petitioner wherein he has enclosed extra of register and other documents indicating that the petitioner has worked with respondents and therefore, he is entitled to the benefit of regularization Rules 2001.

Heard learned counsel for the petitioner and standing counsel perused the affidavits filed by the parties.

Having regard to the submissions made by the learned counsel for the parties, it is found that the dispute with respect to petitioner's working as on 29th July 1991 or thereafter is to be decided . The learned counsel appearing on behalf of respondents submits that records relating to the aforesaid fact is not available in its record.  The learned counsel for the petitioner on the other hand submits that he has filed fresh records along with writ petition and rejoinder affidavit which clearly indicates that the petitioner was engaged as daily wager from 1988 and he worked upto 1993 under the respondents. It is stated that if that be the case, the petitioner would be entitled to the benefit of Rule 2001. With respect to the arrears of salary  etc. claimed by the petitioner, the same is being denied by the respondents and in para 15 of the writ petition, the petitioner has stated that Range Officer by his letter dated 23.4.1997 has informed Divisional Forest Officer Etawah that payment of the petitioner has been made to one Nagendra Singh and .... Singh therefore, the said payment cannot be made to the petitioner. In reply to the said para, the respondent has stated that upon enquiry conducted by  it, it is found that there is no amount left to be paid to the petitioner.

In view of the fact that the question whether the amount has been paid to the petitioner or not whether it h as been given to some other persons and consequently would entitle the petitioner to be paid the amount is question which is to be decided by the respondents themselves as to how, the amount which was payable to the petitioner was handed over to some other persons.  Therefore, the mere denial in the counter affidavit would not redress the grievance of the petitioner as has been raised in the writ petition.

With respect to the relief of the appointment on the post of Range Clerk , it would primarily depend on the question as to whether the petitioner is entitled by virtue of the Rules 2001 for being regularized and whether on the cut of the date as indicated in Rule 4 therein the petitioner was working and satisfied the other requirement of the rules. This is also a question which is to be decided by the necessary evidence which the petitioner would produce.

In view of the aforesaid , it is found that this Court cannot enter into the disputed question of fact and gives its decision on the basis of annexures filed with the affidavit. The question as to whether the persons named by the petitioner as being junior to him have been given the benefit of the said rules is also disputed question of fact which can be agitated by  the petitioner before the authority concerned.

This writ petition is finally disposed of  finally  providing liberty to the petitioner to file representation along with true copy of the writ petition with its annexures,  rejoinder affidavit and its Annexures before the respondent no.4 (Divisional Forest Officer Etawah) as well as  certified copy of this order within one month from today. Upon submission of the said representation as indicated above, the respondent no.4 shall take a decision  after providing fullest opportunity to the petitioner  enabling him to convass his claim before him and he  will pass reasoned order thereon within three weeks from the date of submission of the said representation .

Dt. 31.3.2005



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