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Om Prakash Lal v. State Of U.P. & Others - WRIT - A No. 61330 of 2006 [2006] RD-AH 19201 (14 November 2006)


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Court No. 38

Civil Misc. Writ Petition No. 61330 of 2006

Om Prakash Lal


State of U.P.  and others

Hon'ble V.K. Shukla, J.

Petitioner claims that he was appointed as Class 'C' employee under the supervision of Conservator of Forest, Varanasi Circle, Varanasi. Petitioner had been performing and discharging duties as typist. Contention of petitioner is that in terms of the provisions as contained under U.P. Regularization of Daily Wage Employee Class C (on the post outside Purview of the Public Service Commission) Rules, 1998, his claim for regularization is liable to be considered. Petitioner has contended that his name figured in the list which was prepared by the Eligibility Committee for being considered against sanctioned post. The post of Forester/ Van Daroga was available in the department and for extending the benefit of regularization, petitioner was called for and physical test was undertaken, and therein the petitioner's claim for being regularized on the post of Forester has been non-suited on the ground that height of petitioner is less. At this juncture present writ petition has been filed.  

Learned counsel for the petitioner contended with vehemence that petitioner's claim for regularization has been arbitrarily rejected, and petitioner's claim could not have been non-suited on the ground of hight, as such writ petition deserves to be allowed.

Learned Standing counsel appearing for the respondents, on the other hand, contended that for being appointed as Van Daroga, requisite hight has been prescribed and the same cannot be relaxed, as such there is no infirmity in the view which has been taken.

After respective arguments have been advanced, undisputed factual  position is that petitioner has been working as Class C employee on daily wage basis as typist for the last 28 years, and he claims that he is entitled to be absorbed against the post of Van Daroga. For making appointment on the said post of Van Daroga requisite height has been prescribed and the petitioner admittedly does not fulfill the said requisite prescribed height.

At this juncture the judgment of Hon'ble Apex Court in the case of Bhagwati Prasad Vs. Delhi State Mineral Development Corporation reported  in 1990 (1) SCC page 361 is being looked into.

"The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always and the person to effectively  discharge the duties and is a sure guide to access the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with but is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification.

Recently the Apex Court in Gujarat Agricultural University Versus Rathod Labhu Bechar and others reported in (2001) 2 Supreme Court Cases 574 has considered the said issue again relying on Bhagwati Prasad's case (supra) and it was held by the Apex Court as follows:-

"We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence clause (a) needs modification to this effect.

Thus in view of their long experience on the fact of this case, for the posts concerned the prescribed qualification, if any, should not come in the way of their regularization Clause (b) provides for the regularization of daily wagers in a phased manner to the extent of available sanctioned post"

Similar stand has been taken in the case of Sabir Ali vs. State of U.P. and others, civil misc. writ petition No52198 of 2000, wherein incumbents had been performing duties as Bandi Rakshak.

The aforesaid judgments will not at all come to the rescue of petitioner, inasmuch as, the petitioner at no point of time had ever discharged duty as Van Daroga. Once petitioner has not served as Van Daroga, then at the time of considering his case for regularization no relaxation can be accorded, inasmuch as for the said post requisite height is prescribed, which is not possessed by petitioner, and in case any relaxation is accorded to the aforementioned condition, the same would be clearly unjustifiable, as the post of Van Daroga requires certain minimum standard, and the respondents in their wisdom have every right to maintain the said standard.  The position would have been different in case petitioenr would have been performing and discharging duties as Van Daroga and that was the post held by him, and at the point of time of extending benefit of regularization his claim would have been non-suited on the ground of height. Petitioner has been performing duties as typist, consequently by no stretch of imagination, relaxation for any other post could have been accorded, specially for the post of Van Daroga which requires specific height.  The view taken by the respondents does not suffer from any illegality or infirmity. Writ petition lacks substance and the same is dismissed.




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