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IN THE HIGH COURT OF ALLAHABAD
SUNITA AGARWAL, J.
Shiv Shankar - Appellant
Versus
State of U P and Others - Respondent
WRIT -A No. 18664 of 2019, 8385 of 2020
Decided On : 14-06-2021
Regularisation Rules, 2016 - Application - Rejecting claim of petitioner for regularisation and grant of minimum wages – Challenge – Terminate from services – Eligibility - Petitioner that he was initially engaged in the year 1995 as a Class-IV employee in different units of Khesaraha Range of the Forest Department in District Siddharth Nagar. Since his initial engagement, the petitioner had been continuously working as daily wager without any complaint. For some period in the interregnum he had not been engaged but the said period has to be treated as artificial break, inasmuch as, the petitioner had continuously been engaged for the need/requirement of the department from 1995 till the date of termination of his services by the impugned order dated 04.08.2020 and had been discharging the duties of Mali in the Social Forestry Department on daily wage basis - When the claim of the petitioner for regularisation under the prevalent rules in the Department was not considered, he filed writ petition(A) No.51403 of 2017 (Shiv Shankar vs. State of U.P. & ors.) wherein by the order dated 18.02.2019 direction was issued to consider the claim of the petitioner for regularisation and payment of minimum wages. Pursuant thereto, the claim of the petitioner for regularisation was considered and rejected vide impugned order dated 04.06.2019 on the ground that the petitioner's services were discontinued for two long years during the entire period of his working and the same cannot be ignored as artificial break. The petitioner was, thus, held ineligible for regularisation under the Regularisation Rules, 2016 - Whether long break in service between two dates.
Finding of the court: Court may further note that it seems that the exercise of regularisation as per the procedure in the Rules' 2016 has not been completed in the department. The claim of the petitioner on individual basis had been considered under the directions of this Court. The record does not reflect that any eligibility list had been prepared by the appointing authority in terms of Rule 6(4) in order of the seniority of all daily wage employees working on the date of commencement of the Rules i.e. 12.09.2016 for consideration of their candidature for regular appointment on the permanent or temporary vacancies available either on the date of commencement of the rules, or any other vacancy available in the department subsequent thereto as per the Rule 5 of the Rules' 2016 - exercise of regularisation was required to be undertaken by the Department on its own and there was no requirement of making individual claim by one or two employee(s). Further, the entire exercise of regularisation was required to be undertaken strictly in accordance with the procedure prescribed in sub-rules (4), (5) and (6) of Rule 6 of the Regularisation Rules' 2016. The Selection Committee had to be constituted to assess the suitability of all the eligible candidates arranged in the order of seniority in the list prepared by the appointing authority. On relative assessment of all eligible candidates from the said list on the basis of assessment of their service records and interview of the candidates, if considered necessary, the select list had to be prepared by the Selection Committee for forwarding the same to the appointing authority for regular appointment - Court may reiterate that the claim of the petitioner for regularisation had been rejected only on the ground that he was not eligible under Rule 6(1), inasmuch as, he had not rendered continuous services between two dates i.e. 31.12.2001 till 12.09.2016. The order of rejection of claim of the petitioner for regularisation does not state that the petitioner had not been found suitable on assessment of his service record by a duly constituted selection Committee in accordance with the sub-Rule (4) & (5) of Rule 6. As the second stage for assessment of 'suitability' of the petitioner had not been arrived in the instant case, the termination of daily wage engagement of the petitioner by the impugned order dated 04.08.2020 is found illegal.
Result: Writ petitions are allowed.
JUDGMENT :
1. The aforementioned two writ petitions have been filed by a daily wage worker engaged as Class-IV employee (Mali) in the Social Forestry Department, Siddharth Nagar. The orders dated 04.06.2019 and 04.08.2020 passed by the Divisional Director, Social Forestry Department, District-Siddharth Nagar are subject matter of challenge, separately in the above writ petitions.
2. It is the case of the petitioner that he was initially engaged in the year 1995 as a Class-IV employee in different units of Khesaraha Range of the Forest Department in District Siddharth Nagar. Since his initial engagement, the petitioner had been continuously working as daily wager without any complaint. For some period in the interregnum he had not been engaged but the said period has to be treated as artificial break, inasmuch as, the petitioner had continuously been engaged for the need/requirement of the department from 1995 till the date of termination of his services by the impugned order dated 04.08.2020 and had been discharging the duties of Mali in the Social Forestry Department on daily wage basis.
3. When the claim of the petitioner for regularisation under the prevalent rules in the Department was not considered, he filed writ petition(A) No.51403 of 2017 (Shiv Shankar vs. State of U.P. & ors.) wherein by the order dated 18.02.2019 direction was issued to consider the claim of the petitioner for regularisation and payment of minimum wages. Pursuant thereto, the claim of the petitioner for regularisation was considered and rejected vide impugned order dated 04.06.2019 on the ground that the petitioner's services were discontinued for two long years during the entire period of his working and the same cannot be ignored as artificial break. The petitioner was, thus, held ineligible for regularisation under the Regularisation Rules, 2016. With regard to the claim of minimum wages, it was held that the petitioner having not been appointed against a sanctioned post and no appointment letter having been issued to him, he was not entitled for grant of minimum wages.
4. During the pendency of the writ petition of 2019 challenging the order dated 04.06.2019 rejecting claim of the petitioner for regularisation and grant of minimum wages, the petitioner had also been disengaged as daily wager by the order dated 04.08.2020 on the ground that he was not found eligible for regularisation and as such he cannot continue as daily wager in terms of Rule 10 of the Regularisation Rules, 2016. The writ petition of 2020 was, thus, instituted by the petitioner to challenge the same.
5. Since the affidavits have been exchanged between the parties in previous writ petition filed in the year 2019 and both the counsels for the parties admit that the issues in both the writ petitions can be decided without calling for counter affidavit in the writ petition no.8385 of 2020, both the writ petitions were heard together and are being decided by this common judgment.
6. Challenging the orders impugned, the contention of the learned counsel for the petitioner is that the claim of the petitioner for regularisation had been rejected on a misinterpretation of the provisions of Rules, 2016. The chart of year-wise working of the petitioner, as extracted in the order impugned dated 04.06.2019, indicates that the initial engagement of the petitioner as daily wager was made in August, 1995 and the petitioner had worked for a period of 7 months in the year 1995-96. The said chart also shows that the petitioner was still working on the date of the commencement of the Regularisation Rules, i.e. in the month of September, 2016 and had also worked for 11 months and 9 months in the year 2017-18 and 2018-19; respectively. As the daily wage engagement of the petitioner was due to the necessity of the Department and he had worked for more than 10 years, the benefit of regularisation Rules, 2016 ought to have been provided to him. The discontinuance of services of the petitioner on account of
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