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Shahanshah Husain v/s State of U.P. & Another

    Writ - A No. 40653 of 2016

    Decided On, 08 January 2019

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MRS. JUSTICE SANGEETA CHANDRA

    For the Petitioner: Syed Wajid Ali, Advocate. For the Respondents: Akhilesh Kumar Singh, C.S.C.



Judgment Text

Sangeeta Chandra, J.

1. Heard the learned counsel for the petitioner who is present in the Court. Learned counsel for the respondent is not present.

2. Learned counsel for the petitioner has pointed out from the order sheet that repeatedly time has been granted for filing counter affidavit to the respondents.

3. On 9.1.2018, this Court had granted one month and no more time. Thereafter also the matter has been listed at-least thrice, but till date no counter affidavit has been filed. The writ petition remained pending. In the meantime, Sri S.D. Kautilya has started representing the respondent no. 2- Nagar Nigam, Allahabad / Prayagraj. He was also given time, but he has failed to assist this Court by filing counter affidavit or appearing. Hence, as per the order passed earlier by this Court, this case is being proceeded ex-parte against the respondent.

4. It is the case of the petitioner that he was initially engaged as a daily wager on 1.2.1989 as a lineman in Marg Prakash Vibhag. His junior Vidhyadhar Tiwari was engaged on 11.4.1989 and one Dilip Kumar Tripathi was engaged on 12.4.1989 as daily wagers on the post of Beldar. They were regularized on 28.06.1995.

5. The petitioner made an application on 24.8.2000 for his re

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gularization on which a report was submitted by the In-charge Officer, Electricity/Office Superintendent on 23.9.2000 that one post of lineman, one post of Switchman and one post of helper was lying vacant. When his case was not considered, the petitioner filed Writ Petition, namely writ petition no. 25949 of 2002 wherein he sought regularization w.e.f. 28.6.1995, the date on which services of persons juniors to him were regularized.

6. In pursuance of an interim order passed in the aforesaid writ petition, the petitioner was given minimum of pay scale by the respondents, but his case for regularization was not considered. During the pendency of the writ petition, two orders of regularization of persons engaged later on were also passed by the respondents on 29.9.2007 and 23.1.2008, but his case was not considered. However, later on the services of the petitioner were regularized by an order dated 28.3.2012 w.e.f. 15.9.2010. The petitioner brought the order dated 28.3.2012 on record of Writ Petition No. 25949 of 2002 by means of a supplementary affidavit.

7. When Writ Petition No. 25949 of 2002 came up for hearing this Court did not pass any order in favour of the petitioner, but observed that the petitioner already stood regularized on the post of Beldar and since, this regularization had been done w.e.f. 15.9.2010, the respondents may consider payment of arrears of salary and other benefits from the date of regularization to the petitioner.

8. The petitioner filed a Special Appeal Defective No. 1214 of 2013. Delay was condoned by this Court. The petitioner raised a grievance that his regularization should have been made with effect from the date when his juniors were regularised i.e. w.e.f. 28.6.1995.

9. It was submitted by him that Vidhyadhar Tripathi and Dilip Kumar Tripathi being engaged later on, they should be considered as his juniors and he should be given the benefit of regularization from the date they were regularized.

10. The Division Bench noted that some daily wage employees were regularized in 1994 and subsequently in 2007 also services of 34 employees working in Nagar Nigam in various capacities on daily wages were regularized, but the claim of the petitioner was not considered due to pendency of the writ petition. The Division Bench however said that relief had already been granted to him by the Writ-Court by issuing a direction that the arrears of salary w.e.f. 15.9.2010 be given to the petitioner and there was no good ground to show any interference in the judgment and order dated 15.7.2013. The issue raised by the appellant regarding his claim for regularization from an earlier date involved disputed question of facts and should be raised by the petitioner before the authorities concerned.

11. The petitioner thereafter made a representation to the respondents which has been rejected by the order dated 14.03.2016. The respondent no. 2 considered the case set up by the petitioner that Dilip Kumar Tripathi and Vidya Dhar Tiwari were engaged as daily wage employees after the petitioner but they were regularized earlier by an order dated 28.06.1995. He has referred to the report submitted by the office to the effect that the petitioner was working as Lineman whereas the two alleged juniors of the petitioner were working as Beldar. The petitioner could not be regularized because there was no vacancy on the post of Lineman, when the case of his alleged juniors were considered for the post of Beldar. When the petitioner had filed Writ Petition No. 25949 of 2002 he was granted an interim order in pursuance of which he was given minimum of pay-scale admissible to an unqualified Lineman of Rs.2650 per month along with dearness allowance. Again in the same writ petition an interim order is granted on 19.01.2011 directing the respondents to consider the regularization of the petitioner which had earlier been deferred only on the ground that the writ petition was pending. In pursuance of the interim order granted on 19.01.2011, the petitioner's case was considered for regularization along with other persons working in Marg Prakash Vibhag and he was regularized.

12. In the order impugned it has been specifically stated that Dilip Kumar Tripathi and Vidya Dhar Tiwari were both working as Peons in the Jankarya Vibhag which is a separate department and they were regularized in a different cadre. In the case of the petitioner he was working in the Marg Prakash Vibhag and because there was no post of Lineman vacant, his case was not considered for promotion. Later on, because of interim order passed by this Court, the petitioner was regularized. He cannot claim discrimination as his alleged juniors belonged to a separate cadre and he belonged to a separate cadre.

13. Learned counsel for the petitioner has submitted on the basis of orders passed for regularization of other employees of the Nagar Nigam dated 29.09.2007 and 24.01.2008 that other daily wagers although working in different department either as Dom, Beldar, Khalasi, Mali or Safai Nayak were all regularized as Beldar and posted in different departments. Even those persons who were working as Beldars were posted in Marg Prakash Vibhag but the petitioner's case was not considered due to the pendency of the writ petition as is evident from the office noting dated 05.12.2011 filed as Annexure-3 to the writ petition.

14. In the file noting referred details have been mentioned with regard to the different meetings of the Selection Committee for regularization. It has also come out that the petitioner's case was earlier not considered because of no vacancy on the post of Lineman. When an interim order was granted on 19.01.2011 directing his regularization, legal advise was sought by the Nagar Nigam on 13.07.2011. The Legal Adviser in his opinion dated 27.11.2011 had advised that since there was an order of the High Court for regularization even if there was no post of Lineman available and vacant, the petitioner had to be regularized and he could be considered for regularization as Beldar.

15. The petitioner was thereafter regularized as Beldar. The order dated 28.03.2012 by which the petitioner was regularized as Beldar has been filed as Annexure-4 to the writ petition which also clearly states that because of the interim order passed by this Court on 19.05.2011 his matter was referred for legal opinion on 13.07.2011 and thereafter he was regularized on the post of Beldar. Since the last such meeting of the Selection Committee was held on 15.09.2010 where his case was deferred on the ground that his writ petition was pending he was regularized w.e.f. 15.09.2010. It has been submitted by the learned counsel for the petitioner that the respondents have resorted to discrimination and he should be given regularization with effect from the date his alleged juniors had been given regularization i.e. w.e.f. 28.06.1995.

16. This Court has carefully perused the order impugned and also various documents referred to by the learned counsel for the petitioner. This Court finds that initially the petitioner's regularization was not done because there was no post of Lineman available and vacant. Later on his regularization could not be considered because although there was one post of Lineman available it was for the Reserved Category and the petitioner belonged to the General Category. On a later date the Regularization Committee considered the case and it was deferred because of the pendency of writ petition filed by the petitioner. This fact was brought to the notice of this Court in Writ Petition No. 25949 of 2002 and this Court granted an interim order on 09.05.2011 directing regularization of the petitioner. It is only because of this interim order which has not been filed in this writ petition but reference of which can be found in different annexures, that the petitioner's case for regularization was considered.

17. When the Writ Petition No. 25949 of 2002 came up for hearing it was disposed of taking into account the fact that the petitioner had already been regularized. The petitioner wanted his regularization with effect from the back date he, therefore, filed a Special Appeal. The Appellate Court did not find any infirmity in the order passed by the writ Court. However, regarding the disputed questions of fact raised in the Special Appeal, the petitioner was directed to approach the respondents by means of a representation. The petitioner filed a representation which has been rejected by the order impugned.

18. It has been settled by the Constitution Bench of the Hon'ble Supreme Court in the judgment rendered in the case of Secretary, State of Karnataka vs. Uma Devi reported in (2006) 4 SCC 01 that daily-wagers seeking regularization cannot be given the protection of Article 14 and 16 of the Constitution of India as their regularization would be against the provision of the Constitution itself. A Division Bench of two judges of the Hon'ble Supreme Court in the case of U.P. State Electricity Board vs Pooran Chandra Pandey & Others reported in 2007 (11) SCC 92 had made certain observations on the ground of right to equality of opportunity under State employment under Article 14 and 16 of the Constitution of India and the dictum of the Hon'ble Supreme in the case of Maneka Gandhi vs. Union of India reported in 1978 (1) SCC 248 and held that where regularization is prayed for on the ground of discrimination then the case fell within Article 14 and 16 of the Constitution of India and should be considered by the appropriate authority taking into account the fact that the persons engaged later on were regularized while persons engaged earlier were left out.

19. A three Judges Bench of the Hon'ble Supreme Court in the case of Official Liquidator vs. Dayananad & Ors. reported in 2008 (10) SCC 1 however found the observations made by the two Judges Bench in Pooran Chand Pandey (Supra) to be against judicial propriety and deprecated the practice of a Bench of lesser judges trying to water down the law settled by the Constitution Bench.

20. The case of the petitioner is based upon the alleged discrimination by the respondent Nagar Nigam. This Court finds that each time when the petitioner's case was considered there was valid reason for not regularizing him on the post. It was only because of an interim order granted in the earlier writ petition that his case was considered for regularization without any post of Lineman being available.

21. Under the Regularization Rules of 2001 as are applicable on the Nagar Nigam and other local bodies also, there are three conditions that have to be met before regularization can be made. The first such condition is that the employee concerned should have been found working on the date of notification of the Rules. The second condition that he should have been appointed on a vacant post and the third condition is that he should have been found qualified for holding the said post. The petitioner was admittedly not holding any qualification that is prescribed for regularly recruited Lineman. Therefore, when this Court had granted an interim order directing minimum of pay-scale to be given, he was given minimum of the pay-scale of an unqualified Lineman i.e. Rs.2650-5000 by an order dated 29.07.2004 by the respondents.

22. This Court, therefore, does not find any merit in the contention raised by the learned counsel for the petitioner.

23. The writ petition is dismissed.

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