# Ramesh Kumar Pathak @ Ramesh Kumar v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-07
- **Case number:** Special Appeal No. 96 of 2024
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-kumar-pathak-ramesh-kumar-v-state-of-u-p-ors-51951
- **Pages:** 9

## Headnote

(A) Service Law - Regularisation of services
-
The
Uttar
Pradesh
Public
Service
Commission Rules, 1998 - The Uttar
Pradesh Regularization of Daily Wages
Appointments on Group ''D' Posts Rules,
2001 - Rule 4 - Regularisation of daily
wages appointments on Group 'D' Posts -
Interpretation of - Eligibility conditions for
consideration - Vacancy existing on date of
promulgation of rules - Consideration of
eligible persons - Obligation of authorities
- if a vacancy is existing on the date of
promulgation of those rules and before
making any regular appointment such
persons who are eligible under the said
rules
would
be
considered
for
regularisation.(Para - 19)

(B) The Uttar Pradesh Regularization of
Daily Wages Appointments on Group ''D'
Posts Rules, 2001 - Rule 4 - Retrospective
regularization
-
Distinction
from
consideration for regularization from date
of eligibility - Claim not for retrospective
regularization but for consideration from
date of eligibility.(Para -18)
Appellant (Group - D post of mali) was engaged
as a daily wage worker in 1986 - later regularized
in 2010 - seeking regularization of his services
from 2001, when the relevant regularization rules
came into force, rather than from 2010 -
representation was moved by appellanat -
authorities rejected his representation, which
was upheld by the Single Judge.(Para-19)

HELD: - Court set aside a single judge's
judgment and ordered a fresh decision, directing
the respondent to consider petitioner's claim for
regularization from 2001 in accordance with the
Rules 2001 and the law on the subject. (Para -
20)

Writ Petition & Special Appeal allowed. (E7)

## Text

5 All. Ramesh Kumar Pathak @ Ramesh Kumar Vs. State of U.P. & Ors.
1481
objections/defences
are
open
to
the
petitioner. No order as to costs.
----------
(2024) 5 ILRA 1481
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 96 of 2024

Ramesh Kumar Pathak @ Ramesh Kumar
 ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Vishal Kumar Upadhyay

Counsel for the Respondent:
C.S.C.

(A) Service Law - Regularisation of services
-
The
Uttar
Pradesh
Public
Service
Commission Rules, 1998 - The Uttar
Pradesh Regularization of Daily Wages
Appointments on Group ''D' Posts Rules,
2001 - Rule 4 - Regularisation of daily
wages appointments on Group 'D' Posts -
Interpretation of - Eligibility conditions for
consideration - Vacancy existing on date of
promulgation of rules - Consideration of
eligible persons - Obligation of authorities
- if a vacancy is existing on the date of
promulgation of those rules and before
making any regular appointment such
persons who are eligible under the said
rules
would
be
considered
for
regularisation.(Para - 19)

(B) The Uttar Pradesh Regularization of
Daily Wages Appointments on Group ''D'
Posts Rules, 2001 - Rule 4 - Retrospective
regularization
-
Distinction
from
consideration for regularization from date
of eligibility - Claim not for retrospective
regularization but for consideration from
date of eligibility.(Para -18)
Appellant (Group - D post of mali) was engaged
as a daily wage worker in 1986 - later regularized
in 2010 - seeking regularization of his services
from 2001, when the relevant regularization rules
came into force, rather than from 2010 -
representation was moved by appellanat -
authorities rejected his representation, which
was upheld by the Single Judge.(Para-19)

HELD: - Court set aside a single judge's
judgment and ordered a fresh decision, directing
the respondent to consider petitioner's claim for
regularization from 2001 in accordance with the
Rules 2001 and the law on the subject. (Para -
20)

Writ Petition & Special Appeal allowed. (E7)

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Om Prakash Shukla, J.)

1. Heard.

2. By means of this appeal the appellant has
challenged the judgment dated 05.04.2024
passed in Writ A No.2741 of 2024 which
reads as under :-

"1.
Heard
Sri
Vishal
Kumar
Upadhyay, the learned counsel for the
petitioner, Sri Uttam Kumar Srivastava, the
learned Standing Counsel appearing on
behalf of the State and perused the records.
2.
By
means
of
the
instant
application filed under Section 226 of the
Constitution of India, the petitioner has
prayed for quashing of an order dated
13.02.2024, whereby the petitioner's request
for granting the benefit of regularization
with
effect
from
2003
instead
of
regularization with effect from the date of
order dated 10.09.2010, has been rejected.
3. The petitioner's services on a
Group-D post of Mali were regularized
along with the services of six other
employees by means of an order dated
1482 INDIAN LAW REPORTS ALLAHABAD SERIES
10.09.2010, with effect from the date of
passing of the order.
4. The petitioner and some other
persons filed Writ-A No.3068 of 2011
seeking a direction to the opposite parties to
regularize services of the petitioners with
effect from 2001 when the relevant
Regularization Rules were notified. The said
writ petition was disposed of by means of an
order
dated
01.11.2023
giving
the
petitioners liberty to file a fresh individual
representation regarding their grievance.
5.
Accordingly,
the
petitioner
submitted a representation dated 25.11.2023
praying that the benefit of regularization of
service be granted to him with effect from
2003 since when he is working against a
vacant post. The said representation has
been rejected by means of the impugned
order dated 13.02.2024.
6. It is stated in the impugned
rejection order that the petitioner used to
work as a daily wage labour for rendering
assistance to malis in taking care of plants
and trees and he was given wages for the
post he worked. The petitioner was not
appointed as per the prescribed rules by
issue of an advertisement, under a
transparent process. The petitioner was paid
minimum wages in compliance of the orders
passed by this court with effect from the year
2003. The daily wagers Shiv Kumar and
Gautam, who were senior to the petitioner
have been regularized with effect from
11.09.2014 and 10.09.2016. Therefore, the
Deputy Director rejected his representation
holding that there was no ground for
granting benefit of regularization to the
petitioner with effect from 2003.

7. The learned counsel for the
petitioner has placed reliance on the
following passage of a judgment of a
coordinate Bench of this Court in the case of
Jag
Lal
and
others
Vs.
Director,
Horticulture, U.P.: 2003 (3) UPLBEC
2528:-
"25. Repeated directions were given
by this Court in the order dated 12.12.1995,
as well as subsequent orders passed in these
writ petitions to give petitioners regular
wages in the minimum of the pay scale and
allowances. Respondents violated the orders
and are facing action in contempt. The same
Horticulture Department of the State
Government, however, accepted the orders
passed by the Lucknow Bench of this Court
in group of cases led by Writ Petition No.
6378 (S/S) of 1997, between Bechan All and
Ors. v. Government of U.P., and that the
Director of Horticulture by his order dated
17.2.2001 annexed in Annexure-I in Writ
Petition No. 37136 of 1999, directed
payment of minimum of pay scale to the
daily wages in the department. These
petitioners
were,
however,
arbitrarily
discriminated. Having accepted similar
orders passed by Lucknow Bench the
Department could not have ignored the
claims of the petitioners supported by
similar orders. All the petitioners are,
therefore, entitled to regular pay scale with
effect from 17.2.2001 i.e., the date when
State Government accepted the claims of
similarly situated employees."
8. The aforesaid judgment nowhere
lays down the law that a person who has
worked on daily wages can be regularized
with retrospective effect. Therefore, the
aforesaid judgment is of no help to the
petitioner.
9. The petitioner has failed to
establish any legal right for giving him the
benefit of regularization of services with
effect from 2003. The writ petition is
without any force. It is accordingly
dismissed."

3. The petitioner herein had initially
filed a writ petition bearing Writ Petition
5 All. Ramesh Kumar Pathak @ Ramesh Kumar Vs. State of U.P. & Ors.
1483
No.4142 (S/S) of 1995 for issuance of writ
of mandamus to opposite party to allow the
petitioners to continue to work without
creating any artificial break and to pay equal
wages to them, which are being paid to the
regularly absorbed persons and to consider
the petitioners for their regular absorption
taking into account their long tenure of
engagement and not to appoint any one
without absorbing the petitioners on the
regular side. The said petition was decided
on 05.04.1999 in the following terms :-

"The petitions by the present
petition under Article 226 of the constitution
of India have prayed for issue of a writ of
mandamus to command the opposite parties
to allow the petitioners to continue to work
without creating any artificial break and to
pay equal wages to the petitioners which are
being paid to the regularly absorbed
persons and to consider the petitioners for
their regular absorption taking into account
their long tenure of engagement and not to
appoint any one without absorbing the
petitioners on the regular side. The
petitioners are continuing till the present
day and they are all working on the Musterroll prepared by the opposite parties and
they have completed 240 days and they are
entitled for regularization. The further
contention of the petitioners is that the
opposite parties have adopted a practice of
engaging the persons on the basis of daily
wages and after 2-3 years they have
absorbed such daily wages employees in the
regular cadre on the post of Mali while the
petitioners have not been absorbed on the
regular cadre and are being paid Rs 33.00
per day only. Since the petitioners are
continuing in service itself indicates that the
vacancies is of permanent nature are
available against which the petitioners can
be engaged if they are not being paid the
minimum wages prescribed under the
minimum wages Act. They have further
submitted that on account or poverty and the
lack of job opportunities the petitioners are
working on such a meager amount.
A counter-affidavit has been filed in
which it has been stated that whenever work
is available then the daily wages labourers
are engaged from time to time and they are
being paid their wages daily. They are not
being appointed against any of the vacant
post. Only petitioners are being engaged to
work in the Garden/Farm/Nursery as daily
wage labourers, and they are being paid
wages at the rate fixed by the State
Government from time to time.
Learned Counsel for the petitioners
submitted that since the petitioners are
working from the years 1979,84,1986 and
1997, they have become over age and they
are being continuously engaged shows that
the work is available with the petitioners.
In
these
circumstances,
the
respondents are directed to consider the
case of the petitioners for giving them
regular appointment and for considering
them in regular employment on Class IV
posts, a seniority list of daily wages be
prepared and no person from the outside
shall be given regular appointment till the
petitioners are absorbed.
With the aforesaid observations, this
writ petition is disposed of finally."

4. This judgment was never put to
challenge by the opposite parties.

5. The case of the petitioner in said
petition was that he along with others were
initially engaged in the year 1986 and had
been continuing since then.

6. Be that as it may, the case of the
petitioner was considered in terms of the
above judgment, however, the same was
rejected vide order dated 05.04.1999.
1484 INDIAN LAW REPORTS ALLAHABAD SERIES
7. The said order was put to
challenge by the petitioner along with others
in Writ Petition No.275 (S/S) of 2000
wherein an interim order was passed on
20.01.2000 allowing the petitioners to
continue to work and to pay minimum of
pay scale and also to consider them for
regularization within a period of three
months. Ultimately the opposite parties in
compliance of such order granted minimum
of pay scale to the petitioner along with
others vide order dated 22.04.2003.

8. Thereafter on 14.07.2004 another
order was passed by the concerned opposite
party of the said petition rejecting the claim
of the petitioner along with others for
regularization.
This
happened
during
pendency of Writ Petition No.275 (S/S) of
2010.

9. The petitioner filed another writ
petition along with others bearing Writ
Petition No.4078 (S/S) of 2004 challenging
the
order
dated
14.07.2004
referred
hereinabove. The said writ petition was
connected with the earlier writ petition, filed
by the petitioner, and both of them were
decided by a common judgment dated
15.02.2010 which reads as under :-

"Writ Petition No.275 (SS) of 2000,
has been filed for quashing the oral
disengagement
order
1.12.1999
and
allowing the petitioners to work and pay
them minimum scale, whereas the order
passed by the opposite party No.2 dated
14.7.2004 has been assailed in Writ Petition
No. 4078 (SS) of 2004.
Heard learned Counsel for the
parties.
Learned counsel for the petitioners
submit that all the petitioners were engaged
during the period 1979 to 1987. Since then
they
are
working
intermittently,
but
continuously and have been paid wages. He
submits that the petitioners and identically
situated
employees
in
the
Forest
Department have preferred writ petitions,
on being disengaged, in this Hon'ble Court
as well as at Lucknow Bench of this Hon'ble
Court and by means of judgment and order
dated 24th May, 1996, passed in Writ
Petition No. 5442 (SB) of 1995 of this Court,
this Court has directed for regularization of
services of the daily wage employees. The
said judgment and order was assailed by the
State of U.P. before the Apex Court and the
Apex Court dismissed S.L.Ps so preferred by
the State of U.P. During the pendency of the
aforesaid proceedings, the case of the State
of U.P. and others Versus Putti Lal reported
in (1998) 1 UPLBEC 313, in respect of
Forest Department employees, was decided
by the Apex Court. In the said case of
employees of Forest Department, this Court
has provided, as an interim measure, for
placing the employees in the minimum of the
regular pay scale. The Apex Court while
disposing of the SLP has observed as under :
"Therefore, benefits of the said
judgment of the learned Judge have to go to
all the Daily Wagers/Muster Roll employees.
It is admitted by the respondents that the pay
at the rate as directed by the learned Judge
in the said case, is being paid to those Daily
Wagers who are members of Kumaun Van
Shramik Sangh Centre and such payment is
not being made to any other daily wager
working anywhere in the State including in
Kumaun hills. It is also admitted that the
Scheme as directed by the leaned Judge has
not been framed by the Government so far.
The judgment of the learned Judge is
binding on the Government and its
functionaries. They are, therefore, bound to
pay in terms of the said judgment to every
daily rated labourers/muster roll employees
and the Government is also bound to frame
scheme for regularization of their service."
5 All. Ramesh Kumar Pathak @ Ramesh Kumar Vs. State of U.P. & Ors.
1485
Thereafter, the State of U.P. has
framed Uttar Pradesh Regularization of
Daily Wages Appointment on Group ''C'
Posts (Outside the Purview of the Uttar
Pradesh Public Service Commission) Rules,
1998 for regularization of category ''C'
employees in the year 1998 and the Uttar
Pradesh Regularization of Daily Wages
Appointments on Group ''D' Posts Rules,
2001 for regularization of category ''D'
employee in the year 2001. On perusal of
Rule 4 of the aforesaid Rules, it will be
abundantly clear that a daily wage
employee, who has been working on the cut
off date, that is, 30th June, 1991 and has
been
working
continuously
on
the
proclamation of the notification of the
aforesaid Rules shall be entitled for
consideration of regularization of his
services.
The aforesaid argument has been
rebutted by the learned Standing Counsel on
the grounds that the petitioners have
working intermittently and not continuously
from the cut off date till coming into force
the aforesaid Rules in the year 2001. le 4 of
the Rules, 2001 has been interpreted by this
Hon'ble Court in the case of Visheshwar vs.
Principal Secretary, Forest Anubhag-3 and
others (writ petition No. 47568 of 2002,
decided on 29.11.2004) and this Court in the
said case has held that in case the employee
is working on the cut off date and is
continuing as such on daily wage post on the
date of proclamation of the notification of
the aforesaid Rules, he is entitled for
regularization, inspite of the fact that the
employee worked intermittently.
In the instant case, the petitioners,
as stated by counsel for the petitioners, were
engaged during the period 1979 to 1987,
though have worked intermittently, but on
the cut off date i.e. 26th June 1991 as
provided under the Rules they were working
as daily wagers and further on coming into
force of the Rules, 2001 and as such, in view
of the provisions of Rule 4 of the said Rules,
which specifically provides that the daily
wager employees, who has been working on
the cut off date and on the proclamation of
the
notification
are
entitled
for
consideration of regularization of his
services and as such the petitioners are
entitled for consideration of regularization
of his services in view of the provisions of
Rule 4 of the aforesaid Rules as interpreted
by this Court in the case of Visheshwar
(Supra).
While entertaining the writ petition
No. 275 (SS) of 2000, this Court, vide order
dated 20.1.2000 directed the opposite
parties to allow the petitioners to continue
to work and shall be paid minimum of the
pay scale and shall also be considered for
regularization within a period of three
months from the date of production of a
certified copy of this order.
In compliance of this Court's Order
dated 22.1.2000, the case of the petitioners
was considered and rejected by the
impugned order dated 14.7.2004 is rejected.
Considering all the aspects of the
matter in view, the opposite parties are
directed to consider the case of the
petitioners for regularization, under the U.
P.
Regularization
of
Daily
Wages
Appointments on Group 'D' Rules, 2001,
ignoring the order dated 14.7.2004 passed
in Writ Petition No. 4078 (SS) of 2004,
within a maximum period of three months
from the date of presentation of a certified
copy of this order.
With these observations, both writ
petitions succeed and are allowed."

10. This judgment was never put to
challenge by the opposite parties.

11. Now in compliance of this
judgment, the services of the petitioner
1486 INDIAN LAW REPORTS ALLAHABAD SERIES
along with others were regularized vide
order dated 10.09.2010, copy of which is on
record. The date of the order is incorrectly
mentioned in the impugned judgment. It
appears that the services were regularized
w.e.f. passing of the said order, i.e.
10.09.2010. The order itself speaks of the
U.P.
Regularization
of
Daily
wages
Appointments on Group D Post Rules 2001
(hereinafter referred to as 'Rules 2001'),
therefore, obviously the consideration was
made as per the said Rules 2001.

12. The petitioner being aggrieved
immediately filed a writ petition bearing
Writ Petition No.3068 of 2011 seeking
regularisation of his services from 2001.
This petition was disposed of on 01.11.2023
by this Court in the following terms :-

"1. Heard learned counsel for the
petitioners and learned State counsel for
opposite parties.
2. This petition has been filed
seeking direction to opposite parties to
regularize the services of petitioners w.e.f.
2001 when the Regularization Rules,
applicable upon the petitioners, were
notified. Arrears of salary has also been
prayed.
By
means
of
amendment,
petitioners have also challenged the order
dated 10.10.2010 whereby petitioners'
services have been regularized with the
prospective effect.
3. It has been submitted by learned
counsel for the petitioners that petitioners
were initially engaged in service between
1979
to
1986
in
the
Horticulture
Department whereafter they have been
continuously performing their duties. It is
submitted
that
earlier
petitioners'
regularization
was
rejected
but
subsequently their services have been
regularized vide order dated 10.10.2010
without taking into account services
rendered by the petitioners earlier on daily
wage basis.
4.
For
the
said
grievance,
petitioners
have
already
submitted
representation to the authorities concerned
but seek liberty to file a fresh representation.
5. Considering the fact and without
entering into the merits of the case, liberty is
granted to the petitioners to file fresh
individual representations regarding their
grievance which shall be considered and
decided by the opposite party No.3-Deputy
Director Horticulture, Faizabad Mandal,
Faizabad within a period of eight weeks
from the date said representation is
submitted.
6. With the aforesaid directions,
petition stands disposed of."

13. The said order was subsequently
corrected on 08.11.2023 in the following
terms :-

"I.A. No.22 of 2023
1. This application has been filed
seeking correction of the order dated 1st
November, 2023. It has been submitted that
date of impugned order has wrongly been
indicated.
2. The errors indicated in the
judgement are purely typographical in
nature and, therefore, order dated 1st
November, 2023 is corrected to the extent
that date of impugned order indicated as
10th October, 2010 in paragraphs 2 and 3
shall be read as 10th September, 2010

3. Application is allowed.
4. Office is directed to issue
corrected copy of the order dated 1st
November, 2023."

14. The matter remained pending
for almost 12 years before this Court but for
no fault of the appellant-petitioner.
5 All. Ramesh Kumar Pathak @ Ramesh Kumar Vs. State of U.P. & Ors.
1487
15. In the aforesaid writ petition a
claim was raised for regularization w.e.f.
2001, i.e. the cut off date mentioned in
Rules, 2001. In pursuance of the aforesaid
judgment dated 01.11.2023, the claim of the
petitioner was considered along with others
and by an order dated 13.02.2024 the claim
was rejected firstly on the ground the
minimum of the pay scale was granted to the
petitioner in the year 1999 under the orders
of the High Court and also seniors to him
were also getting the same. Moreover the
seniors to the petitioners, their services had
been
regularised
on
11.09.2014
and
06.10.2015. In the earlier part of the order it
is also mentioned that the initial engagement
of the petitioner was on casual basis. This
order was put to challenge in Writ-A
No.2741 of 2024.

16. The learned Single Judge in his
wisdom has dismissed the aforesaid writ
petition on the ground that the initial
appointment of the petitioner on daily wages
was for assisting the Malis and he was given
wages for the post he worked upon, but the
appointment was not as per the prescribed
Rules. This reasoning is not sustainable as the
learned Single Judge has lost sight of the fact
that based on the same appointment the
services had been regularized in 2010 as
already referred hereinabove, therefore, this
ground was neither open to the opposite
parties before the Writ Court nor to the Writ
Court for dismissal of the writ petition. The
other ground discussed by the learned Single
Judge is that seniors to the appellantspetitioners, namely, Shiv Kumar and Gautam,
their services had been regularised on
11.09.2014 and 10.09.2016. In our opinion,
this could hardly be a ground for rejecting the
claim of the appellant-petitioner by the
opposite parties in their writ petition as also by
the Writ Court. In fact, the seniors could have
very well claimed regularisation from the date
of regularisation of their juniors or for that
matter they could have claimed regularisation
of their services if otherwise it was permissible
from 2001 when the regularization rules came
into force, but if they had been sitting over the
matter and sitting over their rights, how the
appellant-petitioner can be deprived of
consideration of his claim as aforesaid.
Whether the claim would ultimately be
acceptable or not is a different matter, but he
could not have been denied consideration of
his claim to seek regularisation since 2001.

17. The other reasoning given by the
learned Single Judge is that the judgment
referred in its order does not lay down the law
that a person who has worked on daily wages
can be regularized with retrospective effect,
however, this reasoning is also not sustainable.
The learned Single Judge lost sight of the fact
that the petitioner has been litigating ever since
1999 continuously as already narrated
hereinabove.
Once
the
services
were
regularised on 10.09.2010, he immediately
raised an objection by filing a writ petition and
thereafter also he has been agitating the matter
before the Court. It is not a case where he
accepted his regularisation from 10.09.2010
without any demur and filed a writ petition
belatedly but the case is that he immediately
came to the Court. It was in fact an obligation
of the concerned authority to consider the
claim of eligible persons in 2001 when the
Rules of 2001 came into force if the vacancies
were existing and it is the case of the appellant
that this was not done. The appellantpetitioner's case was that the consideration for
regularisation is belated, therefore, resulting in
a belated order of regularization. It should
have been considered in 2001.

18. Most important it is not a case
of consideration for regularisation with
retrospective effect rather it is a case of
being considered for regularisation from the
1488 INDIAN LAW REPORTS ALLAHABAD SERIES
date on which as per the appellantpetitioner's
understanding
he
became
eligible for consideration in view of Rule 4
of the Rules 2001, which reads as under :-

"4. Regularisation of daily wages
appointments on Group 'D' Posts -
(1) Any person who-
(a) was directly appointed on daily wage
basis on a Group 'D' post in the Government
service before June 29, 1991 and is
continuing in service as such on the date of
commencement of these rules; and
(b)
possessed
requisite
qualification
prescribed for regular appointment for that
post at the time of such appointment on daily
wage basis under the relevant service rules,
shall be considered for regular appointment
in permanent or temporary vacancy, as may
be available in Group 'D' post, on the date
of commencement of these rules on the basis
of his record and suitability before any
regular appointment is made in such
vacancy in accordance with the relevant
service rules or orders.
(2) In making regular appointments under
these rules, reservations for the candidates
belonging
to
the
Scheduled
Castes,
Scheduled Tribes, Other Backward Classes
of citizens and other categories shall be
made in accordance with the Uttar Pradesh
Public Services (Reservation for Scheduled
Castes,
Scheduled
Tribes
and
Other
backward Classes) Act, 1994, and the Uttar
Pradesh Public Services (Reservation for
Physically Handicapped. Dependents of
Freedom Fighters and Ex-Servicemen) Act,
1993, as amended from time to time and the
orders of the Government in force at the time
of regularisation under these rules.

(3) For the purpose of sub-rule (1) the
Appointing Authority shall constitute a
Selection Committee in accordance with the
relevant provisions of the service rules.
(4) The Appointing Authority shall, having
regard to the provisions of sub-rule (1),
prepare an eligibility list of the candidates,
arrange in order of seniority as determined
from the date of order of appointment on
daily wage basis and if two or more persons
were appointed together, from the order in
which their names are arranged in the said
appointment order. The list shall be placed
before the Selection Committee along with
such relevant records pertaining to the
candidates, as may be considered necessary,
to assess their suitability.
(5) The Selection Committee shall consider
the cases of the candidates on the basis of
their records referred to in sub-rule (4), and
if it considers necessary, it may interview the
candidates also.
(6) The Selection Committee shall prepare a
list of selected candidates in order of
seniority, and forward the same to the
Appointing Authority."

19. The said rule clearly provides
the eligibility conditions for consideration
and it clearly stipulates that if a vacancy is
existing on the date of promulgation of those
rules and before making any regular
appointment such persons who are eligible
under the said rules would be considered for
regularisation. It is in this light that the
appellant -petitioner claims a right of
consideration
of
his
services
for
regularization w.e.f. 2001, i.e. from the cut
off date (29.06.2001) mentioned in the said
Rules 2001 and also challenges the order
passed by the opposite parties denying the
claim which according to him is contrary to
the Rules. The learned Single Judge has lost
sight of this provision in the Rules 2001.

20. In fact, as we find that the
reasoning given by the concerned official
opposite party for rejecting the claim is also
not sustainable, in fact, the concerned
5 All. M/S Moksh Innovations Inc. Lko. Vs. E City Property Management & Services (P) Ltd.
 New Delhi & Ors.
1489
authority should have considered the same
in the light of the Rules 2001 and thereafter
should have taken a considered decision and
the consideration had to be in accordance
with the Rules 2001 and the law on the
subject, which has not been done as already
discussed hereinabove, and as it is not the
case of the opposite parties at least as of now
that there was no vacancy existing on the
date of coming into force of the Rules 2001
against which the petitioner could have been
considered, therefore, while we set aside the
judgment of the Writ Court, we also set aside
the order impugned in the writ petition out
of which this appeal arises and direct the
concerned respondent no.3 to take a fresh
decision in the matter in the light of the
observations made hereinabove.

21. The writ petition and appeal are
allowed in the aforesaid terms.
----------
(2024) 5 ILRA 1489
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.05.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 266 of 2024

M/S Moksh Innovations Inc.Lko.
 ...Appellant
Versus
E City Property Management & Services (P)
Ltd. New Delhi & Ors. ...Respondents

Counsel for the Appellant:
Desh Mitra Ananad

Counsel for the Respondent:
Pushpila Bisht

(A) Arbitration Law - The Allahabad High
Court Rules, 1952 - Chapter VIII Rule 5 -
special
appeal
-
Maintainability
-
Arbitration and Conciliation Act, 1996 -
Section 11(7) - Bar on appeal against
decision of High Court - Not affected by
Amendment Act, 2019, as notification not
issued for omission of Section 11(7).

Appellant filed a special appeal against the
judgment of a Single Judge in an arbitration
matter - respondents raised a preliminary
objection - appeal was not maintainable due to
the bar under Section 11(7) of the Arbitration and
Conciliation Act, 1996 - court criticized appellant
for
raising
a
ground
that
was
"highly
objectionable" - not raised earlier, and for not
informing the Single Judge about a relevant
fact(Para - 4,9,10)

HELD: - Special appeal was dismissed as not
maintainable due to the bar under Section 11(7)
of the Arbitration and Conciliation Act, 1996.
Amendment omitting Section 11(7) had not been
notified, so the bar still existed. High Court Rules
cannot override statutory bar. Left open for the
appellant to pursue other remedies as may be
permissible in law.(Para -11,12,13)

Special
Appeal
dismissed
as
not
maintainable. ( E-7)

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Om Prakash Shukla, J.)

1. Heard Mr. Desh Mitra Anand,
learned counsel for the appellant and Ms.
Pushpila Bisht, learned counsel for the
respondents.

2. There is a delay of 135 days as on
01.05.2024 in filing the special appeal.
Counsel for the respondents has no
objection in application for condonation of
delay being allowed, therefore, we allow the
application for condonation of delay and
condone the delay in filing the special
appeal.

3. This special appeal has been filed
under Chapter VIII Rule 5 of the Allahabad