IMPORTANT POINT
An employee must be in service on the date of enforcement of regularization rules to be eligible for regularization, and artificial breaks in service do not negate eligibility if the employee was employed prior to the cut-off date.

JUDGMENT :

Hon'ble Ajit Kumar, J.

1. In the light of office order dated 02.03.2021 a photocopy of the rejoinder affidavit is supplied by learned counsel for the petitioner which is taken on record.

2. Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri Rafat Raza Khan, learned counsel for the contesting respondents.

3. Petitioner before this Court is aggrieved by the order dated 07.07.2018, whereby, his claim for regularization as a Group -D employee has been rejected.

4. Briefly stated facts are that the petitioner was initially appointed on daily wage basis on the post of Fitter on 01.02.1999. He claimed to have discharged his duties as such and was working at the relevant point of time when the regularization rules dated 12.09.2016 were brought into force by the State Government providing for regularization of daily wage/ work charge/ contract employees upon Group -C and Group -D posts of the Government Department (outside the purview of Public Service Commission). This Government Order though was issued in respect of Government Department posts but it is an admitted position to the parties that this Government Order was adopted by the Urban Development Department.

5. The claim of the petitioner has been rejected on the ground that on the date of enforcement of regularization rules in the year 2016, petitioner was not working on daily charge basis. It has been held that the petitioner continued to work from 1991 till 2014 when he was removed and it was in the year 2017 only when the then Chairman, Nagar Palika Parishad engaged Altaf Hussain as an outsource employee. Thus, petitioner being not in employment on the date of enforcement of regularization order, could not be given benefit thereof and his claim for regularization came to be rejected.

6. The submission advanced by learned counsel for the petitioner is that the petitioner was in employment on the cut off date i.e. 31.12.2001 as he was engaged initially on 01.02.1999 and he worked until the year 2014 when he was fired being only a daily wage employee but he was re-engaged in the year 2017 and therefore, the period from 2014 and 2017 should be taken to be of artificial breaks. He has placed reliance upon the judgment of this Court in the case of Janardan Yadav v. State of Uttar Pradesh & Others, 2008 (1) UPLBEC 498 followed by a coordinate bench of this Court in the case of Arjun Kumar Singh & 11 Others being Writ -A No. 16819 of 2018 and also another judgment of coordinate bench in the case of Ram Nath Verma & Others v. State of Uttar Pradesh & Others, 2017 (7) ADJ 46.

7. Having perused the order impugned, the relevant regularization rules, 2016 placed before me and the authorities cited, I find that the rules do provide vide its clause 6(1) that an employee seeking regularization must have been working as daily wager or contract employee or as a work charge employee since prior to 31.12.2001 and must be in service on the date of enforcement of regularization rules. The regularization Rules came into force on 12.09.2016. There is no quarrel that the petitioner was engaged on daily wage post on 01.02.1999 and worked till 2014, so he was in employment prior to the cut off date, but unfortunately before the rules were brought into force, petitioner had already been removed from the employment. Thus, on the date of enforcement of rules, petitioner was not in employment.

8. The judgment in the case of Janardan Yadav (supra) deals with the provisions of sub clause 6(1) of the rules and interprets it to mean that an employee must be in employment since prior to cut off date and on the date of enforcement of rules, but he is not required to be in continuous service from the cut off date till the enforcement of rules, it has been held that it is not the intendment of rule making authority. The word "continuing in service" has been interpreted to mean that he has worked with artificial breaks during the period but must have been in employment since prior to cut off d