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Shiv Singh Yadav v. State Of U.P. And Others - WRIT - A No. 38405 of 2004 [2006] RD-AH 14067 (22 August 2006)


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       Court No.24

Civil Misc. Writ Petition No.38405 of 2004

Shiv Singh Yadav Vs. State of U.P. and others


Hon'ble V.C. Misra, J.

Heard learned counsel for the petitioner and learned standing counsel.

Counter and rejoinder affidavits have been exchanged between the parties. On the joint request of learned counsel for the parties, this writ petition is being disposed off finally at the admission stage in terms of the Rules of the Court.

The facts of the case in brief are that the petitioner was appointed on 13.12.1984 as part time tube well operator in Upkhand Chaturth at Government Tube Well No.21, Bhognipur, Kanpur-Dehat. It is alleged by the petitioner that he was falsely implicated in case crime no.208 of 1993 under Sections 302 and 307 of the Indian Penal Code and the petitioner was taken into custody on 29.10.1993 and could be released only on 26.10.1995. Meanwhile the petitioner had already been terminated vide order dated 16.4.1994. Subsequently, the petitioner was finally acquitted from the Sessions Trial No.616 of 1993 vide its order dated 3.3.2000. The petitioner on 8.11.1995 approached the concerned executive engineer for allowing him to join with sanction of leave for the period he was absent from duty. The petitioner preferred a Writ Petition No.2252 of 1996 before this Court, which was disposed off with the direction to the respondents to pass fresh orders after considering all the facts and circumstances of the case. The respondents on being approached by the petitioner, sought legal opinion and vide order dated 14.3.1996 cancelled the termination order dated 16.4.1994 (annexure-6 to the writ petition) in consequence of which the petitioner joined his services and since then he is continuously performing his duty to the full satisfaction of the respondents. On 31.1.1997, the respondents published a seniority list in which the petitioner's name is found to be at serial no.33. Meanwhile the petitioner was transferred from the post at Bhognipur, the petitioner readily accepted the same and joined at his new posting but asked for his services to be considered for regularization. This request of the petitioner was turned down vide order dated 16.4.2001 on the ground that the petitioner's services could not be considered for regularization under the Regularization Rules as he had not been appointed prior to 1.10.1986. Subsequently, vide letter dated 11.11.2002, the executive engineer after considering all the facts wrote a letter to the superintending engineer for the purpose of considering the regularization of the services of the petitioner. Since no action was taken, the petitioner being aggrieved moved this Court in another Writ Petition No.21286 of 2004, which was disposed off directing the respondents to decide the representation of the petitioner in accordance with law. The petitioner moved a representation dated 7.6.2004 along with a copy of the aforesaid order passed by this Court before the respondents which was rejected vide impugned order dated 1.7.2004 (annexure-14 to the writ petition).

Being aggrieved by the said impugned order dated 1.7.2004, this writ petition has been preferred by the petitioner. The learned counsel for the petitioner has submitted that since the petitioner had not deliberately absented himself from his duties but was wrongly put in jail for the period 16.4.1994 to 14.3.1996 per force as he was taken in judicial custody and could not be bailed out, but since ultimately he was acquitted of all the charges and on his cancellation of his termination order he joined immediately thereafter so the said period of absence could not be taken as discontinuity in service. More so, since the appointing authority-executive engineer had recalled the termination order dated 14.4.1994 vide its order dated 14.3.1996 he continues to remain in service from the date of his initial joining and considered for regularization but the respondents have wrongly treated the said period as break in service.

I have perused the record and find that the period during which the petitioner had been in jail as the bail had not been granted to him initially but was thereafter finally acquitted by the Court could not be treated as break in service since, on acquittal his termination order had been recalled and he had been reinstated in service. The period of absence from duty having been spent by him in jail would be considered as Dies-non. The petitioner may not be entitled to any payment of salary or wages for the said period on the principles of ''no work no pay' but for all other purposes the said period would be treated to be in continuity of service. Thus, the petitioner having been appointed prior to 1.10.1986 as part time tube well operator and having continued in service till the date of enforcement of Regularization Rules, 1996, is entitled for being considered for regularization in terms of Rule 4 (1) (i) of the said Rules, 1996. The impugned order dated 1.7.2004 passed by the respondents in this respect is found to be wrong, bad and illegal and is liable to be quashed.

Under the above said facts and circumstances of the case and observations made hereinabove the impugned order dated 1.7.2004 (annexure-14 to the writ petition) is hereby quashed. The respondents are directed to consider the case of the petitioner for the purposes of regularization in accordance with the aforesaid Rules, 1996 in terms of the observations made hereinabove expeditiously preferably within a period of three months.

The writ petition is allowed. No order as to costs.

August 22, 2006



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