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IN THE HIGH COURT OF ALLAHABAD
SAURABH LAVANIA, J.
Shiv Kumar Vishwakarma - Petitioner
Versus
State of U.P. Prin. Secy. Dept. of Culture and Ors. - Respondents
Service Single No. 36959 of 2018
Decided On : 18-01-2020
U.P. Regularization of Persons Working on Daily Wages or On Work-Charge or On Contract in Government Departments on 'Group-C' and 'Group-D' Posts (Outside the Purview of the U.P. Public Service Commission) Rules, 2016 – Regularization Rules of 2016 – Rule(s) 7, 8 and 9 – Regularization of petitioner on Post of Driver – Seeking direction to opposite parties to consider case of petitioner on post of Driver alongwith all consequential services benefits from initial date of appointment as per provisions of Rules, 2016 r/w Government orders – Held, Appointment with retrospective effect is normally not permissible – One of reasons being it will adversely affect others who have been appointed as per Service Rules in interregnum in matters of seniority, promotion etc – In a case of regularization of service retrospectivity will adversely affect such rights of others who have already been regularly appointed in regular cadre as per Service Rules and are better placed – Rules are made part of Regularization Rules of 2016 – Rule 9 of Regularization Rules of 2016 contains stipulation that those regularized under these Rules will be placed below those appointed in accordance with service Rules prior to them Rule makes a valid distinction between two different classes of employees, one which is regular and other not so there is rationale basis for such objective as also nexus with an object – Petition dismissed. (Paras 14 and 15)
Facts of the case:
Petitioner was appointed on post of Driver as daily wager on 30.07.1996 and continued on said post without any obstruction till December, 2005 – Thereafter he was disengaged from service by opposite parties – Aggrieved b disengagement petitioner approached this Court by means of Writ Petition which was disposed of finally by means of the judgment and order.
Findings of the court:
Appointment with retrospective effect is normally not permissible – One of reasons being it will adversely affect others who have been appointed as per Service Rules in interregnum in matters of seniority, promotion etc – In a case of regularization of service retrospectivity will adversely affect such rights of others who have already been regularly appointed in regular cadre as per Service Rules and are better placed – Rules are made part of Regularization Rules of 2016 – Rule 9 of Regularization Rules of 2016 contains stipulation that those regularized under these Rules will be placed below those appointed in accordance with service Rules prior to them Rule makes a valid distinction between two different classes of employees, one which is regular and other not so there is rationale basis for such objective as also nexus with an object.
Result: Petition dismissed
JUDGMENT :
1. Heard Sri Ghaus Beg, learned counsel for the petitioner and Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel for the State-Respondents.
2. The present writ petition has been filed for following main reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned office order No.616/U.P. San. Nid.-1 (54)/2016 dated 15.09.2017 passed by the Director, U.P. Museum Directorate (opposite party No.2) so far as it relates to regularization of petitioner's services prospectively i.e. from the date of assuming the charge on the post of Driver at International Ram Katha Sangrahalaya (opposite party No.4), as contained in Annexure No. 1 to the writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to consider the case of the petitioner on the post of Driver alongwith all consequential services benefits from the date of initial date of appointment i.e. 30.07.1996 as per the provisions of U.P. Regularization of Persons Working on Daily Wages or On Work-Charge or On Contract in Government Departments on 'Group-C' and 'Group-D' Posts (Outside the Purview of the U.P. Public Service Commission) Rules, 2016 read with Government orders dated 13.08.2015 and 24.02.2016, within the time specified by this Hon'ble Court.
(iii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the petitioner difference of salary for the period 30.07.1996 to 15.09.2017 alongwith dearness allowance and other admissible allowances as being paid to regularly appointed Drivers of the State Government."
3. Admittedly, the petitioner was appointed on the post of Driver as daily wager on 30.07.1996 and continued on the said post without any obstruction till December, 2005 and thereafter, he was disengaged from the service by the opposite parties. Aggrieved by the disengagement, the petitioner approached this Court by means of the Writ Petition No. 1247 (S/S) of 2006, which was disposed of finally by means of the judgment and order dated 25.01.2017. The relevant portion of the judgment and order dated 25.01.2017 reads as under:-
"The trivial question now left is with regard to regularization of the petitioner on the post of Driver.
Learned Counsel for the petitioner has argued that he has continued on the post of Group D since his engagement in the year 1996. The work of the post of the Driver has been taken and in view of the engagement as daily wager on Class IV post w.e.f. 15.12.1988, he is entitled for regularization on the post in question under Uttar Pradesh Regularization of Daily Wages Appointments on Group "D' Posts Rules, 2001 (in short referred to as 2001 Rules').
It has also been contended by the learned Counsel for the petitioner that in identical situation, this Court has passed the judgment and order dated 18.9.2015 in Writ Petition No. 4052 (SS) of 2014 wherein it has been held that an employee, who had been appointed as daily wager on Group D post before 29.6.1991 and is continuing on his post on 21.12.2001, are fully eligible and entitled to be considered for regularization. Therefore, denial of regularization to the petitioner is wholly unjustified and in breach of the provisions of the aforesaid Rules.
After scrutiny of records, there is no quarrel on the point that the petitioner was engaged in 1996 and today also he is working with respondents but his services have yet not been regularized. It may be clarified that the requirement under the 2001 Rules is that an incumbent was directly appointed on daily wage basis in a government service before 29.6.1991 and is/are continuing in service as such on the date of commencement of the said Rules. The further requirement under the Rules is that the person must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis.
It is also relevant to mention that this Court in the case of Janardan Y
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