Court No. - 24 Case :- SERVICE SINGLE No. - 1319 of 2007 Petitioner :- Shiv Poojan Respondent :- State Of U.P. Thru Prin.Secy. P.W.D. & 3 Ors. Petitioner Counsel :- Vinay Tripathi,Ved Prakash Sharma Respondent Counsel :- C.Sc.. Hon'ble Rajiv Sharma,J.
On an application for disposal of application for interim relief, with the
consent of learned Counsel for the parties, the writ petition is being
disposed of finally.
Heard learned Counsel for the petitioner and learned Standing Counsel.
Learned counsel for the petitioner submits that the petitioner was
appointed as Beldar on daily wage basis on 25.1.1989 and since last
eight years, the petitioner is working on the post of Peon with full
devotion and satisfaction of the opposite parties but the opposite parties
has neither regularized the services of the petitioner nor pay the salary
of regular pay-scale. He submits that services of the similarly situated
persons,have been regularized and they are getting their salary
regularly whereas the claim of the petitioner was not considered
accordingly. Feeling aggrieved, the petitioner has preferred the instant
writ petition.
Counsel for the petitioner submits that the petitioner has regularly
represented before the authorities regarding minimum pay-scale as well
as for payment of salary but the opposite parties have not considered
the same.
On the other hand, learned Standing Counsel submits that
regularization can be done only against the sanctioned posts and in
absence of vacancies, it shall not be possible for the opposite parties to
regularize the services of the petitioner.
I have given my anxious consideration to the argument advanced by the
learned counsel for the parties.
Ordinarily it is not for this Court to direct for regularization. The incident
of regularization is governed by U.P. Regularization of Daily Wages
Appointments on Group ‘D’ Post Rules, 2001 [hereinafter referred to as
Rules 2001 for the sake of brevity]. Hence only the competent authority
may take a decision to regularize the services in accordance to Rules,
2001. It is not for this Court to usurp the power vested in the authorities
under the Service Rules. It has not been disputed that some of the
juniors have been regularized. Though, the State has got right to fill up
the vacancies through direct recruitment but while doing so it shall
always be necessary for the State to exercise the statutory power
conferred by the Rules, 2001 to consider the cased of the employees,
who are serving in the department like the present case for about one
decade and more.
Needless to say that the Rules framed under Article 309 of the
Constitution of India have got statutory force and once Rule 4(a) of the
Rules enables the authorities to consider the cases of the employees for
regularization who were appointed prior to 29.6.1991 then it shall always
be incumbent upon the authorities to exercise power in just and fair
manner to consider the case of the employees for regularization. The
experience and knowledge of the employees who are working in the
department shall always be useful to run the administration and in case
their case is covered by regularization rules, they shall have right to be
considered for regularization under the Rules. Such employees will have
edge over the freshers in the matter of recruitment. The freshers may be
appointed through direct recruitment but that should be done only after
considering the case of old employees working in the department in
accordance to statutory provisions.
Right to life with dignity, right to quality of life and right to livelihood are
fundamental rights guaranteed under Article 21 of the Constitution of
India vide 1997 (9) SCC 377:Air India Statutory Corporation V. United
Labour, AIR 1991 SC 101 : Delhi Transport Corporation V. DTC
Mazdoor Congress, 1985 (3) SCC 545 : Olga Tellis and others V.
Bombay Municipal Corporation and others, 2001 (6) SCC 496:Hinch Lal
Tewari V. Kamla Devi. Employees cannot be deprived of their
statutoryUntitled 1 rights available under the Rules, 2001 to be
considered for regularization, which co-relate with their livelihood.
Accordingly, it is unjust and improper to make direct recruitment without
considering the case of the old employees for regularization against the
existing vacancies under Rules, 2001.
Considering the peculiar facts and circumstances of the case as also
without entering into the merits of the case, the writ petition is disposed
of finally with a direction to the opposite parties to consider the case of
the petitioner for regularization in accordance with Rules, 2001,
expeditiously, say, within a period of three months from the date of
receipt of a certified copy of this order.
Order Date :- 2.2.2010
Ajit/-