# Service Single/ Writ Petition No.- 6083 Of 2010 Ram Sagar Gupta v. State of U.P. & Ors

- **Citation:** (2016) 4 ILRA 422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-26
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/service-single-writ-petition-no-6083-of-2010-ram-sagar-gupta-v-state-of-u-p-ors-43647
- **Pages:** 8

## Headnote

quashed - Held, qualifies under UP Group D Rules 2001 as engagement in service before 29.6.1991 and
continued in service on 21.12.2001;sanctioned post not prerequisite per GOs 13.8.2015 & 24.2.2016 -
consider within 3 months. (Paras 1-4, 9)

No Sanctioned Post Bar - Engagement order (8.3.1990) valid; prior admissions as Chowkidar; mechanical
rejection arbitrary - Held, create post if needed; violates Art.14. (Paras 5-9)

Case Law discussed:

## Text

422 INDIAN LAW REPORTS ALLAHABAD SERIES
the crime, the manner in which it was planned and committed, the motive for commission of the crime, the
conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts
which would enter into the area of consideration.

16. It is the duty of every court to award proper sentence having regard to the nature of the
offence and the manner in which it was executed or committed. The sentencing courts are expected to
consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a
sentence commensurate with the gravity of the offence."

16. It is not disputed that the accused appellant has undergone 5 years and more than 10 months of
imprisonment which is a long period of incarceration as he has also undergone his maximum period of his
sentence.

17. Thus, considering the law laid down by Hon'ble Apex Court in the above mentioned cases, in
the facts and circumstances of the case, in my opinion, the ends of justice would be met if the custodial
sentence of 7 years rigorous imprisonment under Section 376 I.P.C is reduced to 6 years rigorous
imprisonment without reducing the amount of fine imposed against the accused appellant under all other
sections.

18. In view of the aforestated reasons, the appeal is partly allowed.

19. The conviction of the appellant under Sections 363, 366 and 376 I.P.C. is confirmed and 7 years
rigorous imprisonment under Section 376 I.P.C. is reduced to 6 years rigorous imprisonment but the sentence
of fine of Rs. 2000/- under Section 376 I.P.C. is maintained. The remaining sentences with default stipulation
is also maintained.

20. The appellant is in jail and would serve out the remainder of his sentence if not already
completed.

21. Let certified copy of this judgment be sent to the concerned court immediately for sending
modified conviction warrant of the accused appellant to the concerned prison.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2016

BEFORE

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

Service Single/ Writ Petition No.- 6083 Of 2010
Ram Sagar Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
4 All. Ram Sagar Gupta Vs State Of U.P. & Ors.
423
Counsel for the Petitioner:
Sri Qamrul Hasan

Counsel for the Respondents:
C.S.C.

Daily Wager Chowkidar Regularized - Engaged 1990 (Gymnasium Sultanpur); repeated rejections
quashed - Held, qualifies under UP Group D Rules 2001 as engagement in service before 29.6.1991 and
continued in service on 21.12.2001;sanctioned post not prerequisite per GOs 13.8.2015 & 24.2.2016 -
consider within 3 months. (Paras 1-4, 9)

No Sanctioned Post Bar - Engagement order (8.3.1990) valid; prior admissions as Chowkidar; mechanical
rejection arbitrary - Held, create post if needed; violates Art.14. (Paras 5-9)

Case Law discussed:
1. DTC Vs. DTC Mazdoor Congress, 1991 Supp (1) SCC 600
2. Maneka Gandhi Vs. UOI, AIR 1978 SC 597
3. Raja Ram Pandey Vs. State of U.P., 2009(27) LCD 771
4. Ishwar Deen Vs. State of U.P., 2008(26) LCD 1134
5. Janardan Yadav Vs. State of U.P., 2008(1) UPLBEC 498

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

1. Heard Sri Qamrul Hasan, learned Counsel for the petitioner and learned Standing
Counsel for respondents.

2. Aggrieved by the order dated 12.5.2010 passed by the Director General (opposite party
no.2) whereby claim of the petitioner, who is a daily wager, has been rejected mainly on the ground
that the petitioner was not engaged against any sanctioned post of Chowkidar and as such his
service cannot be regularized.

3. This case has very peculiar history and is a very hard case where the petitioner,
admittedly, was engaged as a daily wager in the year 1990 is continuously fighting for his
legitimate claim of regularization in view of the Regularization Rules and Government Orders
issued in this behalf, which infact has been denied on one pretext or the other despite orders of this
court, which is highly unjust and arbitrary.

4. According to the learned Counsel for the petitioner, the petitioner had earlier approached
this court by filing writ petition no. 2001(SS) of 2003 for a direction to respondents to consider his
candidature for regularization in accordance with U.P. Regularization of Daily Wager Employees
(Group D) Service Rules, 2001. The said writ petition was disposed of vide order dated 13.11.2009
with the direction to the competent authority to consider the case of the petitioner for regularization
in accordance with Rules within the period prescribed therein.
424 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Learned Counsel for the petitioner has vehemently asserted that there was no direction in
the order dated 13.11.2009 for consideration of representations of the petitioner rather the Court
had directed to consider the petitioner's candidature for regularization of his services as per 2001
Rules. However, the respondents in a very mechanical manner considered the representation and
disposed of the same vide order dated 22.2.2010.

6. Being dis-satisfied with the aforesaid order dated 22.2.2010, passed by the DirectorGeneral, PRD/PVD Evam Yuwa Kalyan, Uttar Pradesh, Lucknow, the petitioner was constrained
to file another writ petition bearing no. 1823 (SS) of 2010 assailing the said order. Again the said
writ petition no. 1823(SS) of 2010 was disposed of with the direction to respondent no.2 to reconsider the case of the petitioner for regularization in the light of the observations made in the
order dated 13.11.2009 passed in Writ Petitioner No. 2001(SS) of 2003.

7. The tail of woe of the petitioner did not end here as instead of regularizing service of the
petitioner in accordance with the provisions of 2001 Rules and Government Orders issued from
time to time prescribing the cut off date, the claim of the petitioner has been rejected once again by
the order impugned in the present writ petition dated 12.5.2010.

8. Learned Counsel for the petitioner has contended that the impugned order is wholly
unjust and arbitrary and shows the colourable exercise of powers vested in the authorities as the
petitioner who had served the department for several long years has been denied his claim of
regularization on flimsy grounds that there is no sanctioned post of Chowkidar and the
engagement/appointment was made without any selection process. This stand of the respondent is
wholly illegal as the petitioner is entitled for regularization under 2001 Rules whereas 2001 Rules
clearly stipulates 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, is fully eligible and entitled for
regularization.

9. 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 was continuing on his post on 21.12.2001, is 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.

10. Lastly, learned Counsel for the petitioner submitted that in order to circumvent and
frustrate various orders passed by this Court as well as the order dated 27.12.2013 of the State
Government, firstly petitioner was denied wages as admissible to him and later on, he was
prevented from discharging his duties without any written orders with a sole motive to deny
regularization to the petitioner, which shows the mala-fide and bias attitude of the concerned
authority, who has shown scant respect to the orders passed by this court and his acts also fall in the
category of insubordination as he also did not comply the order of higher authorities i.e. State
Government dated 27.12.2013.
4 All. Ram Sagar Gupta Vs State Of U.P. & Ors.
425
11. In contrast, learned Standing Counsel has submitted that the petitioner was engaged in
exigency of work on a Class IV post i.e. Volunteer and was being paid allowances admissible to
him in accordance with the Government Orders issued from time to time. It has also been stated in
the counter affidavit though the post of Chowkidar is not sanctioned by the State Government at
Gymnasium, Sultanpur, however, the then District Youth Welfare and Provincial Vikas Dal
Adhikari appointed the petitioner as Chowkidar without there being any post with the condition
that the appointment of the petitioner is temporary and no lien will accrue to the petitioner in
pursuance of of the said appointment. It has also been argued that that the matter of the petitioner is
not covered by the 2001 Rules and as such he is not entitled for any relief as sought for by him.

12. Having considered the submission, made by the parties and perused the material on
record, there is no quarrel on the point that the petitioner was engaged by respondents way back in
the year 1988. Annexure-7 to the petition is the appointment order dated 8.3.1990 issued by the
opposite party no.3 appointing the petitioner on the post of Chowkidar. The respondents in
paragraph 15 of their counter affidavit filed November, 2010 has admitted issuance of the aforesaid
appointment order but has stated that there is no such sanctioned post of Chowkidar and as such the
engagement was illegal.

13. At this juncture, it would also be relevant to point out that earlier respondents had filed
counter affidavit in Writ Petition No. 7793 (SS) of 1991 filed by the petitioner, where in paragraph
10 of the writ petition , it has been stated that the petitioner was appointed as Chowkidar vide order
dated 8.3.1990 of the ADM Sultanpur at Stadium (Near Harijan Hostel) and his services were fully
temporary and on daily wages. Petitioner has annexed a copy of the order dated 10th June 2013
issued by the Director General whereby number of daily wagers working on class IV post falling in
General, Reserved and Handicapped category were regularized and granted pay scale of Rs. 520020200 + pay band of Rs. 1,800/-. It appears from the record that earlier when this court directed for
considering the candidature of the petitioner for regularization, the State Government i.e. Secretary,
Yuwa Kalyan Vibhag issued specific order dated 27.12.2013 to the opposite party no.2 for
complying the court's order and to take decision on regularization of the petitioner.

14. At this juncture, it would be useful to point out that 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
426 INDIAN LAW REPORTS ALLAHABAD SERIES
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 ill-afford to be consigned to the limbo of undefined premises and uncertain
applications. That will be a mockery of them."

15. 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
appointed in exigencies of work and not against any substantive vacancy after due selection
process.

16. 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.

17. 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."

18. 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 doing so 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 regularization."
4 All. Ram Sagar Gupta Vs State Of U.P. & Ors.
427
19. After scrutiny of records, there is no quarrel on the point that the petitioner was
engaged on 8.3.1990 by the respondents but his services have yet not been regularized despite
orders of this courts on the wrong interpretation. It may be clarified that the requirement under the
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.

20. 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
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.

21. 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. 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.

22. A perusal of the impugned order dated 12th May, 2010 reveals that there is no
sanctioned post of Chowkidar and the petitioner was engaged without there being any such
post, therefore, the petitioner cannot be regularized on the post of Chowkidar. In these
circumstances, the petitioner has not been found eligible to be regularized. To substantiate
his assertion, the petitioner has annexed a copy of Karya Karam Pustika of 2001 as
Annexure-12 to the writ petition with respect to his engagement In which also under the
heading "Store Arrangement", the name of the petitioner has been shown as "Da.
Chowkidar".Therefore, it is highly difficult to accept the assertion of the respondent that
the petitioner was engaged as Volunteer. Furthermore, the petitioner has asserted that as
per Rule of United Provinces Rakshak Dal Rules, declaration has not been issued declaring
the petitioner as Volunteer, as when a person is enrolled under Rule-5, the Enrolling
Authority shall complete Form-II which shall be known as the Recruitment Certificate. The
said assertion has not been repelled by the respondents by bringing any document on
428 INDIAN LAW REPORTS ALLAHABAD SERIES
record. It may be added that the stand of the department is that the petitioner was engaged
as Volunteer and the order dated 8.3.1990 issued by the opposite party no. 3 engaging the
petitioner as a Chowkidar is not a valid order but there is no whisper in any affidavits filed
by the respondent that the said order dated 8.3.1990 being invalid order has been cancelled
or rescinded by the competent authority. Therefore, the contention of the petitioner has no
legs to stand and is rejected.

23. It would be also relevant to point out that a learned Single Judge of this Court
while disposing of the writ petition no. 2001(SS) of 2009 filed by the petitioner vide
judgment and order dated 13.11.2009 had observed that the opposite parties in the earlier
counter affidavit had admitted that the petitioner was appointed as Chowkidar. The Order
dated 8.3.21990 reveals that District Youth & Welfare Officer, Sultanpur had issued the
said order after due approval of Additional District Magistrate. In my considered opinion,
findings recorded by the learned Single Judge in its aforesaid judgment and order dated
13.11.2009 had attained finality as learned Standing Counsel failed to point out that these
findings have been upset/altered/modified subsequently.

24. At this juncture, it may be added that it is the onerous duty of authorities to act
in a fair and transparent manner, which is an essence of action of State Authorities. The
petitioner, who is litigating for his legitimate rights since last twenty years, cannot be
denied in a mechanical manner or by twisting the facts just to mislead this Court. The
engagement of petitioner as daily wager as a Chowkidar is not disputed but it is said that
there is no sanctioned post of Chowkidar. In this regard, it would be relevant to mention
that recently the State Government vide order dated 13.8.2015 has provided that in the
event post is not available, then for creating necessary post, necessary steps be taken for
creating post and thereafter an incumbent shall be regularized, if he was working on the cut
of date i.e. 31.3.1996. Now, recently the State Government vide government order dated
24th February, 2016 has changed the cut of date to 31.12.2001 and has again provided that
if the post is not available then necessary steps be taken for creation of the post. Therefore,
the stand of the department that there is no post of Chwokidar is no more available to them.

25. In view of the aforesaid discussion, the impugned order dated 12.5.2010 passed
by the Director-General/opposite party no.2 contained in Annexure-1 to the writ petition
cannot be sustained as it suffers from various infirmities and consequently, is hereby
quashed. A writ of Mandamus is issued to the respondents to consider 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
within a maximum period of three months from the date of presentation of a certified copy
of this order. The order shall also be communicated to the petitioner.

26. With the aforesaid observations and directions, the writ petition is allowed.
Parties to bear their own costs.
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4 All. Brajendra Kumar Gupta Vs State Of U.P. & Ors.
429
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Criminal Misc. Writ Petition No.- 6880 Of 2015

Brajendra Kumar Gupta ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amit Kumar Srivastava

Counsel for the Respondents:
Govt.Advocate, N.I.Jafri, Shwetashwa Agarwal

The instant petition has been filed with a prayer to issue writ, order or direction in the nature of Certiorari
quashing the impugned order dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at
Lucknow, respondent no.2 whereby the sanction to prosecute the respondent no.4 Sri J. Ravindra Gaur,
Senior Superintendent of Police, Aligarh has been refused in Case Crime No.571 of 2008 (Now Case Crime
No.R.C.-053201050006), under Sections 302,201,120-B IPC, police station CBI/SCB, Lucknow.

The order impugned dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at Lucknow,
the respondent no.2, is hereby quashed. The writ petition is hereby allowed.

Held: Para-

Case Law discussed:
G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC;
State of U.P. Vs. Dharmendra Prasad Singh, AIR 1989 SC 997;
(2013)15 SCC 624; Urmila Devi Vs. Yudhvir Singh;
(2014)2 SCC 532; Manohar Lal Sharma Vs. Principal Secretary and Others;
(2012) 3 SCC 64; Subramanian Swamy Vs. Manmohan Singh and Another;
(2014) 13 SCC 70; Chandan Kumar Basu Vs. State of Bihar;
(2001) 43 ACC 516; P.K. Pradhan Vs. State of Sikkim
(2002) 45 ACC 788; Raj Kishore Roy Vs. Kamleshwar Pandey and Another;
(2013) 8 SCC 119; State of Maharashtra Vs. Mahesh G. Jain;
(2008) 11 SCC 289; Raghunath Anant Goveilkar Vs. State of Maharashtra;
(2013) 80 ACC 526; Anupam Singh Vs. Central Bureau of Investigation;
Criminal Appeal No.722 of 2015 (D.T. Virupakshappa. Vs. C. Subhash)
2012) 12 SCC 72; Om Prakash and others Vs. State of Jharkhan;
(2015) 3 SCC 123; Sanjay Sinh Ramrao Chavan Vs. Dattatray Gulab Rao Phalke and others.

(Delivered by Hon'ble Naheed Ara Moonis, J.)