# Kishori Lal v. State of U.P. & Ors

- **Citation:** (2016) 4 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-01
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishori-lal-v-state-of-u-p-ors-43624
- **Pages:** 6

## Text

4 All. Kishori Lal Vs State of U.P. & Ors.

1043
were taken by the department to initiate the disciplinary proceedings by issuance of the chargesheet between 1986 and 1993. It was only when a direction was issued by the Tribunal in
November, 1992 that a charge-sheet was served and the Enquiry Officer was appointed in March,
1993.

20. We find that the denial of the subsistence allowance and forcing the respondent no.
2 to travel all the way from Allahabad to Delhi without payment of subsistence allowance
is in violation of the principles of natural justice. The Tribunal was, therefore, justified in setting
aside the impugned order on the ground of violation of the principles of natural justice.

21. We do not find any infirmity in the impugned order. The writ petition is accordingly
dismissed with the observation that the direction of the Tribunal shall be complied by the
petitioners and the enquiry be held and concluded, in the event the petitioners so desire to pursue,
within four months from today.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Service Single No.- 4136 Of 2004

Kishori Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Manoj Sahu, Ranjana Srivastava

Counsel for Respondents:
 C.S.C.

Proceedings

The petitioner filed the writ petition seeking regularization of his service and payment of salary for the Class D
post of Road Mali, which he had been performing continuously as a daily-wager since 1988. The petitioner's
service had been intermittently disrupted, with termination in January 2000 and reemployment in 2003
following an earlier writ petition. Despite nearly thirty years of service, the petitioner's claim for regularization
was rejected under Government Orders dated 8.9.2010 and subsequent cut-off dates in Regularization Rules
of 2001, on the grounds that he was not in service on the mandatory cut-off date. The petitioner contended
that this was arbitrary and discriminatory, as junior employees had been regularized. The Court heard detailed
arguments, considered Apex Court precedents on the right to livelihood and regularization of long-serving
daily wagers, and examined statutory provisions under the U.P. Regularization of Daily Wages Appointments
(Group D) Rules, 2001.
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Procedure

Petitioner engaged as daily-wager from 1988.
Employment interrupted in January 2000; reemployed in 2003 after prior writ petition.
Application for regularization considered along with other daily wagers in 2010; rejected under cut-off criteria.
Petitioner challenged denial of regularization, citing Government Orders and Supreme Court judgments.
Court reviewed seniority lists, service history, and applicability of Rules of 2001.
Court applied principles from Maneka Gandhi vs. Union of India, Raja Ram Pandey vs. State of U.P., Ishwar
Deen vs. State of U.P., and Delhi Transport Corporation case regarding right to livelihood and nonarbitrariness.
Court noted recent Government Orders (13.8.2015 and 24.2.2016) extending regularization eligibility.
Court directed respondents to regularize petitioner's service within three months and communicate the order.

Penal Sections / Statutory Provisions

U.P. Regularization of Daily Wages Appointments (Group D) Rules, 2001 - Rule 4(1).
Relevant Government Orders: 8.9.2010, 13.8.2015, 24.2.2016.
Constitutional Provisions: Article 14 and Article 21 of the Constitution of India.

Case Law / Principles

Maneka Gandhi vs. Union of India, AIR 1978 SC 597 - Reasonableness and non-arbitrariness as part of
Article 14.
Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress, 1991 SCC (Supp.) 600 - Right to
livelihood includes protection of employment; service conditions must be certain and secure.
Raja Ram Pandey vs. State of U.P., 2009 (27) LCD 771 - Supersession of senior employees in
regularization is arbitrary and violative of Articles 14 and 21.
Ishwar Deen vs. State of U.P., 2008 (26) LCD 1134 - State must exercise statutory powers fairly to
consider long-serving daily wagers for regularization.
Janardan Yadav vs. State of U.P., 2008 (1) UPLBEC 498 - Continuous service requirement cannot be
interpreted to exclude employees with lawful breaks.

Head Notes

Petitioner, a long-serving daily-wager in the Forest Department, was entitled to regularization under U.P.
Regularization of Daily Wages Appointments (Group D) Rules, 2001, read with relevant Government Orders.
Despite breaks in service, statutory provisions and Government Orders mandate consideration of employees
engaged before 29.6.1991 and continuing on cut-off dates. Denial of regularization, while junior employees
were regularized, constituted arbitrary action in violation of Article 14. The Court invoked principles of
reasonableness, non-arbitrariness, and protection of right to livelihood under Article 21. The writ petition was
allowed, and respondents were directed to regularize the petitioner's service within three months.

Facts

Petitioner engaged as daily-wager in 1988 in Road Mali post.
Service interrupted in 2000; reemployed in 2003.
Application for regularization rejected citing cut-off dates.
Junior employees regularized, petitioner excluded.
Petitioner continues to serve in same post.
Government Orders of 2015 and 2016 extended eligibility for regularization.
4 All. Kishori Lal Vs State of U.P. & Ors.

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Contentions

Petitioner entitled for regularization as per Rules of 2001 and Government Orders.
Seniority list shows petitioner ahead of others who were regularized.
Denial of regularization was arbitrary, violative of Articles 14 and 21.
Petition relies on Apex Court rulings on right to livelihood and fair exercise of statutory powers.

Analysis

Statutory Rights: Rules of 2001 require consideration of employees engaged before 29.6.1991 and
continuing thereafter; petitioner meets criteria.
Government Orders: Orders of 2015 and 2016 strengthen petitioner's entitlement despite earlier service
break.
Seniority and Arbitrary Action: Non-regularization of senior employee while juniors regularized is
discriminatory.
Constitutional Principles: Right to livelihood and protection from arbitrary action upheld under Articles 14
and 21.
Judicial Precedents: Supreme Court and High Court cases emphasize fair treatment, certainty of service,
and protection of daily-wager rights.
Remedial Direction: Court empowered to issue writ of mandamus directing regularization.

Conclusion

The writ petition was allowed. The Court directed the respondents to consider the petitioner's claim for
regularization under the U.P. Regularization of Daily Wages Appointments (Group D) Rules, 2001, and
relevant Government Orders, and to pass an appropriate order within three months. The order ensures justice
to the petitioner by protecting his right to livelihood and eliminating arbitrary discrimination, reinforcing that
statutory and constitutional protections apply to long-serving daily-wager employees.

(Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)

1. Heard.

2. Petitioner has filed instant writ petition for a direction to respondents to regularize service
of the petitioner and to pay salary of Class D post (Road Mali) on which he is continuously
working for more than a decade without any break.

3. It is a very hard case, where the petitioner is working as a daily-wager since 1988 to the
present date. He has put in almost thirty years of service. It is travesty of justice that despite so
many years, the rules and regulations do not allow his services to be regularized. Unfortunately, the
petitioner was not in service on the cut off date when he ought to have been in service on 31st
December, 2001. The petitioner was working since 1988 till January, 2000 when his services were
dispensed with. The petitioner filed a writ petition before this Court and this court directed for
taking a decision on the representation of the petitioner. Consequently, the opposite parties
reemployed the petitioner in the year 2003. When the case of regularization was considered along
with 53 other daily wagers in context of the Government Order dated September 8, 2010, the case
of the petitioner was rejected for regularization on the ground that he was not in services on
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
31.12.2001 as required under Regularization Rules. Petitioner was not in service on the two cut off
dates which is mandatory requirement of the rules. Petitioner is continuing till today, which goes to
show that work of the petitioner is good and the need of the opposite parties is also continuing.

4. Learned Counsel for the petitioner has invited attention of this court towards the seniority
list issued by opposite party on 21.3.2010 wherein his name finds place at serial no.5 but his
services have not been regularized and the claim has been rejected whereas few persons junior to
him have been regularized, which action of the respondents is highly arbitrary and violative of
Article 14 of the Constitution of India. It has also been pointed out that denial of regularization is
also in breach of Government Order dated 8.9.2010 whereby the State Government has provided
for regularization of employees, who are working since 29th June, 1991.

5. On the other hand, the State Counsel has submitted that the daily wages employees are
engaged in exigencies of work without adhering to the procedure prescribed for making regular
appointment. The petitioner had not worked continuously and as such he is not entitled for being
considered for his regularization as per provisions of 2001 Rules.

6. The petitioner was engaged in the year 1988 and is litigating for his right to be regularized
in service since last twenty years as the State Government has issued orders and framed rules for
regularization of daily wagers from time to time but on account of lackadaisical attitude of the
authorities, such a benefit was not extended to the petitioner. The Apex Court, while considering
the sufferings of such employees/daily wagers, noticed in the case reported in 1991 Supplementary
(Vol-I) SCC 600 Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others, which
reads as under:

"The employment under the public undertakings is a public employment and a public
property. It is not only the undertakings but also the society which has a stake in their proper and
efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the
service conditions of those who work for them must be encouraging, certain and secured, and not
vague and whimsical. With capricious service conditions, both discipline and devotion are
endangered, and efficiency is impaired.

The right to life includes right to livelihood. The right to livelihood therefore cannot hang
on to the fancies of individuals in authority. The employment is not a bounty from them nor can its
survival be at their mercy. Income is the foundation of many fundamental rights and when work is
the sole source of income, the right to work becomes as fundamental. Fundamental rights can illafford to be consigned to the limbo of undefined premises and uncertain applications. That will be
a mockery of them."

7. There is need to minimize the scope of arbitrary use of power in all walks of like. It is all
the more improper and undesirable to expose the precious rights like the rights of life, liberty and
property to the vagaries of individual whims and fancies. It may be added that daily wagers are
4 All. Kishori Lal Vs State of U.P. & Ors.

1047
appointed in exigencies of work and not against any substantive vacancy after due selection
process.

8. It may further be pointed out that a seven Judge Bench decision of the Apex Court in
Maneka Gandhi vs. Union of India and anr.; AIR 1978 SC 597, has held that reasonableness and
non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act
in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be
violated.

9. In Raja Ram Pandey vs. The State of U.P.; 2009(27)LCD 771 this Court held as under"

" Right to consider for regularization is a fundamental right. However, when the
regularization is done in order of seniority subject to fitness, then supersession of seniors on
unfounded grounds is an arbitrary act and is also violative of Arts. 14 and 21 of the Constitution of
India. In case the petitioner was qualified for regularization, then denial of regularization by
respondents against regular vacancy is a highly arbitrary act and violative of Article 14 of the
Constitution of India."

10. In Ishwar Deen vs. State of U.P.(2008(26) LCD 1134; this Court while considering
provisions of Regularization Rules of 2001 held as under:-

"Though, the State has got right to fill up vacancies through direct recruitment but while
don gso it shall always be necessary for the State to Exercise the statutory power conferred by the
Rules (supra) to consider the cases of the employees, who are serving in the department like in the
present case for about two deceased or more. Needless to say that the Rules framed under Article
209 of the Constitution of India have got statutory force and one Rule 4(a) of the Rules enable 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 regularisation."

11. After scrutiny of records, there is no quarrel on the point that the petitioner was engaged in
1988 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 the 2001 Rules is that an incumbent should
directly be 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.

12. It is also relevant to mention that this Court in the case of Janardan yadav vs.State of
U.P. [(2008) 1 UPLBEC 498, held that this Court does not find any ambiguity in Rule 4(1)
providing as to which kind of persons would be entitled for regularization and it nowhere requires
that the incumbent must have worked throughout from the date of initial engagement till the date of
commencement of the Rules. In the situation, such a stand of the State that the employee had not
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
worked continuously or there are breaks in service, would be contrary to the Rules and would
amount to adding and reading certain words in Rule 4(1) which have not been inserted by the
legislature. As the rules are applicable only to daily wage employees, the Rules framing authority
was well aware that such employee could not have worked continuously throughout and therefore,
has clearly provided that the engagement must be before 29.6.1991 and he is continuing as such on
the date of commencement of the Rule.

13. Needless to observe here that recently the State Government has issued a Government
Order dated 13.8.2015 whereby it has been provided that persons working on daily wage/work
charge/contractual basis in the department of the State Government, its autonomous bodies, public
undertakings/local bodies, development authorities and Zila Pancahyat, who were engaged upto
31.3.1996 shall be regularized. By the subsequent government order dated 24.2.2016, the cut of
date was altered to 31.12.2001. In these circumstances, there is no justification in not regularizing
the service of the petitioner when it is an admitted fact that the petitioner was engaged as daily
wager before 29.6.1991 and he was continuing on the post on 21.12.2001 and even thereafter.There
is no rebuttal by the respondents that no persons junior to the petitioner has been regularized. In
these circumstances, petitioner is entitled for regularization at least from the date when persons
junior to him were regularized in service.

14. In view of above, a writ of Mandamus is issued to the respondents to examine the claim of
the petitioner for regularization under the U. P. Regularization of Daily Wages Appointments on
Group 'D' Rules, 2001 read with Government Orders dated 13.8.2015 and 24.2.2016 and pass
appropriate orders in this regard within a maximum period of three months from the date of
presentation of a certified copy of this order. The order so passed, shall also be communicated to
the petitioner.

15. With the aforesaid observations and directions, the writ petition is disposed of finally.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.04.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 4317 Of 2008
&
Criminal Appeal No.- 4324 Of 2008

Lorik Kohar & Sunil Pandey ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Revisionist/Appellant: