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Sanjay Kumar Gupta And Others v. D.J., Shahjahanpur And Others - WRIT - A No. 74399 of 2005 [2006] RD-AH 14563 (28 August 2006)


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Court No. 38

Civil Misc. Writ Petition No. 61613 of 2005

Anoop  Singh and 17 others


State of U.P.  and others

Hon'ble V.K. Shukla, J.

Petitioners have approached this Court questioning the validity of the decision dated 02.08.2005, by means of which claim of petitioners for extending the benefit of regularization has been refused.

Brief background of the case, as disclosed in the writ petition, is that petitioners claim that they were appointed on 06.02.1996 as class IV employees at different places of Collectorate, Saharanpur on a consolidated pay of Rs.2550/- per month. Petitioners have contended that proceeding for granting regular appointment to the petitioners against substantive vacancy created by retirement/transfer of permanent class IV employees was undertaken in the year 1999 by  Officer Incharge (Nazarat) on 01.06.1999 by submitting report for consideration before Additional District Magistrate. It has been contended that Additional District Magistrate passed order directing the existing arrangement to continue and guidance was sought from the Board of Revenue. Based on the said proceedings on 05.06.1999, District Magistrate, Saharanpur sent communication to the Board of Revenue, pointing out that there were 33 substantively vacant posts of class IV employees, against which persons were working and for revoking prohibition against appointment for enabling grant of regular appointment to them. Petitioners have contended that on 10.10.2000  objection had been raised by the State Government qua functioning of petitioners, and the net effect of the same was that District Authorities stopped taking work from petitioners with effect from 01.11.2000. It has been contended that on account of this situation, present 18 petitioners along with 16 other identically circumstanced  persons filed writ petition No. 50464 of 2000, Anoop Singh and 33 others vs. Collector, Saharanpur and others. The said writ petition was finally disposed of by this Court on 10.05.2002.Vide said judgment, this Court after taking into account the Rules for regularization,  issued directions for considering the claim of petitioners for regularization ignoring the artificial break, which may exist in service, and in the event of non-regularization of service reasoned order was to follow. Representation was made by petitioners on 17.05.2002. The District Magistrate sought guidance  and Board of Revenue  on 17.07.2002 mentioned that the District Magistrate was the appointing authority and the decision was to be taken by him. Petitioners have contended that Screening Committee was constituted and the said Committee recommended  the claim of petitioners on 12.11.2002. It has been contended that on 06.01.2003, six incumbents out of above 34 were accorded regular appointment. Petitioners have contended that similar benefit was not accorded to them. The District Magistrate, Saharanpur on 20.01.2003 sent communication to the State Government seeking its guidance, and reminder was also sent. In the meantime writ petition No.5552 of 2003 was also filed, questioning therein the action of respondents in ignoring the claim of petitioners for regularization. This Court on 11.09.2003 directed for consideration of claim of petitioners for regularization in accordance with law. Thereafter reminder was sent by the District Magistrate on 27.02.2004 to the State Government. The State Government on  21.06.2004 sent its opinion to the effect that the petitioners cannot be extended the benefit of regularization on account of gap in service between 30.10.2000 and 21.12.2001. Thereafter, District Magistrate has also taken decision that, as the petitioners do not fulfill requisite eligibility criteria, they cannot be extended the benefit of regularization. At this juncture present writ petition has been filed.

Counter affidavit has been filed, and therein the ground which has been mentioned in the opinion of the State Government as well as in the order of the District Magistrate, the same has been reiterated, and it has been further contended that valid reasons have been given for not extending the benefit of regularization to the petitioners, and  as such no interference be made.

Rejoinder affidavit has been filed, and therein it has been contended that in similar set of circumstances, six persons have been extended the benefit of regularization, and further orders passed by this Court on earlier occasion have been ignored, and the matter has not at all been dealt with in its correct perspective, as such writ petition is liable to be allowed.  

Sri Ahok Mehta, Learned counsel for the petitioner, contended with vehemence that in the present case, petitioners are also entitled to be extended benefit of regularization Rules  for the simple reason that petitioners have been functioning since prior to 30.06.1998, which is the cut off date, and further similarly situated persons  have been extended the benefit of regularization, and coupled with the fact in the peculiar facts and circumstances of the case and in view of specific directions issued by this Court, the benefit of regularization could not have been refused, as such order impugned is liable to be quashed, and petitioners are liable to  be extended the benefit of regularization.

Sri Shashank Shekhar Singh, Brief Holder, appearing on behalf of State Government, on the other hand, has countered the said submission by contending that benefit of regularization can be extended only in the event incumbent fulfills each and every pre-requisite eligibility criteria prescribed, and in absence of the same, the benefit of regularization cannot be extended, as such no interference be made. As far as benefit of extension of regularization to other six persons is concerned, the same cannot be made foundation and basis for claiming parity, specially when those six persons have not been impleaded and arrayed as party to the writ petition, and the details about them are not at all available on record.  

After respective arguments have been advanced, the undisputed position which emerges is to the effect that petitioners had been appointed without undertaking any process of selection whatsoever. Services of petitioners had been sought to be dispensed with on 10.10.2000. This Hon'ble Court on 22.11.2000 entertained writ petition No.50464 of 2000 and passed interim order to the effect that in the meantime if the petitioners were already engaged, they should be paid their salary for the period they had actually worked. This writ petition was finally decided on 10.05.2002 by directing that claim of petitioners' regularization be considered in consonance with the Rules, interim order dated 22.11.2000 was directed to continue, and further directives were issued  that while considering the claim of petitioners for regularization recommendation of the District Magistrate  dated 05.06.1999 be also taken into consideration. The interim order dated 22.11.2000 was clearly a conditional order that in case petitioners were already engaged then in that event they were directed to be paid salary for the period they actually worked. The scope of interim order cannot be extended beyond what has been provided therein. Recommendation dated 05.06.1999 would also not come to the rescue of the petitioners inasmuch as only in the event of petitioners' fulfilling each and every pre-requisite eligibility criteria required under the Rules then only benefit of  regularization was available to them. Order passed in writ petition No.5552 of 2003 also directed for considering the claim of petitioners in accordance with law. Petitioners themselves have explained their position that on the date when the aforementioned Rules, viz. U.P. Regularization of ad-hoc appointment (On posts outside purview of Public Service Commission) (3rd Amendment) Rules, 2001, was enforced, petitioners were not functioning. Once as per Rules, petitioners did not fulfill requisite eligibility criteria for consideration of their claims for extending the benefit of regularization, this Court cannot come to the rescue of the petitioners by directing for extending the benefit of regularization dehors and in contravention of Rules. Consequently, there is no error on the part of the authorities concerned in refusing to extend the benefit of regularization in favour of petitioners.

Much emphasis has been laid by the petitioners on the fact that six persons, viz. Karm Singh, Udai Veer Singh, Bhuneshwar, Pritam Singh, Satyapal and Surendra Kumar have been extended the benefit of regularization under the U.P. Regularization of ad-hoc appointment (On posts outside purview of Public Service Commission) (3rd Amendment) Rules, 2001, who were similarly situated, and the petitioners have been discriminated. Those six persons  have not at all been impleaded and arrayed as respondents. Had they been  impleaded and arrayed as respondents, then they could have been afforded opportunity to explain the circumstances, which is being mentioned against them. However, it has not at all been disclosed in the writ petition as to whether on the date of enforcement of aforementioned Rules those six incumbents were actually functioning or not. Qua petitioners finding of fact has been returned that in between 30.10.2000 and 21.12.2001, petitioners were not functioning. This is well settled that in writ jurisdiction parity of wrong action if any can neither be claimed nor can be extended, as such petitioners cannot be permitted to claim negative equality qua those six persons. However, in case any relief is accorded to the petitioners, then Rules would be violated and infringed.      

In view of what has been stated above, writ petition is dismissed.    

No order as to costs.




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