# Shiv Kumar Vishwakarma v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-02
- **Case number:** Service Single No. 36959 of 2018
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-vishwakarma-v-state-of-u-p-ors-45494
- **Pages:** 6

## Headnote

A. Service Law- Regularization - Uttar
Pradesh
Regularization
of
persons
Working on Daily Wages or on Work
Charge or on Contract in Government
Department on Group 'C' and Group 'D'
Posts (Outside the Purview of the Uttar
Pradesh
Public
Service
Commission)
Rules, 2016: Rules 7, 8, 9 - Petitioner has
challenged order providing prospective
regularization. The Court held that the
regularization should be prospective and
not retrospective so that seniority of
those, who are already in service, is not
affected. (Para 13, 14)

Those regularized under the said Rules will be
placed below those appointed in accordance
with the service Rules prior to them. Rule 9
makes a valid distinction between two different
classes of employees, one which is regular and
other not so. (Para 14)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

2 All. Ram Adhar Singh Yadav Vs. State of U.P. & Ors.
141

".........It is well settled that a
deputationist has no right to remain on
deputation and he can be sent back to his
Parent Department at any time........"

17. Heard the submissions advanced
by learned counsel for the parties and
perused the record.

18. The admitted facts of the present
case are to the effect that the petitioner
was sent on deputation on 01.07.2014 and
he joined the post in issue in the Nigam on
17.07.2014 and till passing of the order
impugned dated 04.12.2019, he continued
on the said post. The Rule quoted above
specifically provides the term of the
deputationist on deputation, according to
which ordinarily a deputationist can serve
only upto 5 years and not beyond that
period.

19. It also appears from the record
that after taking into consideration the
contents of enquiry report/letter dated
30.11.2019 of respondent No. 5/General
Manager, U.P. Rajkiya Nirman Nigam
Limited, Ayodhya Region, Ayodhya and
the
letter
dated
02.12.2019
of
the
respondent No. 6, whereby repatriation of
the petitioner has been recommended, the
petitioner has been repatriated to his parent
department.
Initiation
of
disciplinary
proceedings against the petitioner has also
been recommended.

20. In nutshell, the case of the
petitioner is that he is a deputationist and
he cannot be repatriated on the basis of the
allegations
made
against
him.
Accordingly, he may be allowed to
continue on deputation.

21. No rule or pronouncement either
of this Court or the Apex Court has been
placed before this Court in support of right
to continue as deputationist in Nigam.

22. In regard to right of a
deputationist, now it is settled principle
that a deputationist can always and any
time
be
repatriated
to
his
parent
department to serve in his substantive
position, in other words on his substantive
post, at the instance of either of the
departments and there is no vested right in
such person to continue for long on
deputation in the department, in which he
had gone on deputation.

23. Keeping in view the aforesaid
admitted position as well as the settled
legal position with regard to right of
deputationist, this Court is of the view that
the order impugned dated 04.12.2019 is
not liable to interfered with.

24. For the foregoing reasons, the
writ petition lacks merit. Accordingly, it is
dismissed.

25. At this stage, learned counsel for
the petitioner submitted that the salary of
four months has not been paid to the
petitioner.

26. In this regard, Sri Shishir Jain,
learned counsel for the respondent Nos. 2
to 6 has stated before this Court that the
salary of the period served by the
petitioner would be released in his favour
within 15 days, if there is no other legal
impediment.
----------
(2020)02ILR A141

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.01.2020

BEFORE
142 INDIAN LAW REPORTS ALLAHABAD SERIES
THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 36959 of 2018

Shiv Kumar Vishwakarma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ghaus Beg

Counsel for the Respondents:
C.S.C.

A. Service Law- Regularization - Uttar
Pradesh
Regularization
of
persons
Working on Daily Wages or on Work
Charge or on Contract in Government
Department on Group 'C' and Group 'D'
Posts (Outside the Purview of the Uttar
Pradesh
Public
Service
Commission)
Rules, 2016: Rules 7, 8, 9 - Petitioner has
challenged order providing prospective
regularization. The Court held that the
regularization should be prospective and
not retrospective so that seniority of
those, who are already in service, is not
affected. (Para 13, 14)

Those regularized under the said Rules will be
placed below those appointed in accordance
with the service Rules prior to them. Rule 9
makes a valid distinction between two different
classes of employees, one which is regular and
other not so. (Para 14)

Writ petition dismissed. (E-4)

Precedent followed:

1. Registrar General of India & another Vs. V.
Thippa Setty & others, (1998) 8 SCC 690 (Para 13)

2. Union of India and others Vs. Sheela Rani,
(2007) 15 SCC 230. (Para 13)

3. State of Haryana Vs. Jasmer Singh, (1996)
11 SCC 77 (Para 13)

Petition against order dated 15.09.2017,
passed by the Director, U.P. Museum
Directorate.
(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Ghaus Beg, learned
counsel for the petitioner and Dr. Udai
Veer Singh, learned Addl. Chief Standing
Counsel for the State-Respondents.

2. The present writ petition has been
filed for following main reliefs:-

"(i) Issue a writ, order or
direction in the nature of certiorari
quashing the impugned office order
No.616/U.P. San. Nid.-1 (54)/2016 dated
15.09.2017 passed by the Director, U.P.
Museum Directorate (opposite party No.2)
so far as it relates to regularization of
petitioner's services prospectively i.e. from
the date of assuming the charge on the
post of Driver at International Ram Katha
Sangrahalaya (opposite party No.4), as
contained in Annexure No. 1 to the writ
petition.

(ii) Issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to
consider the case of the petitioner on the
post of Driver alongwith all consequential
services benefits from the date of initial
date of appointment i.e. 30.07.1996 as per
the provisions of U.P. Regularization of
Persons Working on Daily Wages or On
Work-Charge
or
On
Contract
in
Government Departments on 'Group-C'
and 'Group-D' Posts (Outside the Purview
of the U.P. Public Service Commission)
Rules, 2016 read with Government orders
dated 13.08.2015 and 24.02.2016, within
the time specified by this Hon'ble Court.

(iii) Issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to pay
the petitioner difference of salary for the
period
30.07.1996
to
15.09.2017
alongwith dearness allowance and other
4 All. Shiv Kumar Vishwakarma Vs. State of U.P. & Ors.
143
admissible allowances as being paid to
regularly appointed Drivers of the State
Government."

3. Admittedly, the petitioner was
appointed on the post of Driver as daily
wager on 30.07.1996 and continued on the
said post without any obstruction till
December, 2005 and thereafter, he was
disengaged from the service by the
opposite
parties.
Aggrieved
by
the
disengagement, the petitioner approached
this Court by means of the Writ Petition
No. 1247 (S/S) of 2006, which was
disposed of finally by means of the
judgment and order dated 25.01.2017. The
relevant portion of the judgment and order
dated 25.01.2017 reads as under:-

"The trivial question now left is
with regard to regularization of the
petitioner on the post of Driver.

Learned
Counsel
for
the
petitioner
has
argued
that he
has
continued on the post of Group D since his
engagement in the year 1996. The work of
the post of the Driver has been taken and
in view of the engagement as daily wager
on Class IV post w.e.f 15.12.1988, he is
entitled for regularization on the post in
question
under
Uttar
Pradesh
Regularization
of
Daily
Wages
Appointments on Group "D' Posts Rules,
2001 ( in short referred to as '2001
Rules').

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 is
continuing on his post on 21.12.2001, are
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.

After scrutiny of records, there is
no quarrel on the point that the petitioner
was engaged in 1996 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 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.

It is also relevant to mention that
this Court in the case of Janardan yadav
vs.State of U.P. [(2008) 1 UPLBEC 498,
has 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.
144 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
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 supernumerary post.

Considering the facts in its
entirety and the legal position, this Writ
Petition is disposed of finally with the
direction to the respondents to consider
regularization of services of the petitioner
in light of the aforesaid observation and
Regularization
Rules
read
with
Government Order dated 13.08.2015 and
24.02.2016 keeping in mind that the
petitioner is in service since the year 1996,
within three months from the date of
receipt of certified copy of this order."

4. Pursuant to the order dated
25.01.2017, passed by this Court in the
Writ Petition No. 1247 (S/S) of 2006, the
case of the petitioner was considered under
the Uttar Pradesh Regularization of
Persons Working on Daily Wages or on
Work
Charge
or
on
Contract
in
Government Departments on Group 'C'
and Group 'D' Posts (Outside the Purview
of the Uttar Pradesh Public Service
Commission)
Rules,
2016
(in
short
"Regularization Rules of 2016") and vide
order dated 15.09.2017, the petitioner was
regularized in the service. The order
15.09.2017 on reproduction reads as
under:-

"dk;kZy; vkns'k

fjV
;kfpdk
la[;k&12471⁄4,l@,l1⁄2@2006 Jh f'kodqekj fo'odekZ
cuke m0iz0 ljdkj o vU; okn esa ek0 mPp
U;k;ky;] y[kuÅ csUp] y[kuÅ }kjk ikfjr vkns'k
fnukad 25-01-+2017 ds leknj rFkk foRr 1⁄4osru
vk;ksx1⁄2 vuqHkkx&2 ds 'kklukns'k la[;k&44 @2015
@os0vk0&2&795
@nl&541⁄4,e1⁄2@2008
Vh0lh0
fnukad
13
vxLr]
2015
rFkk
'kklukns'k]
la[;k&9@2016@os0vk0&2&201@
nl&2016&81⁄4eq0l0l01⁄2 @2011 Vh0lh0] fnukad 24
Qjojh] 2016 ,oa dkfeZd vuqHkkx&2 dh vf/klwpuk
la[;k&9@ 2016 @ 2@ 197&dk&2@2016] fnukad
12-09-2016
esa
fufgr
O;oLFkk
ds
vuqlkj
fofu;ferdj.k gsrq xfBr lfefr dh laLrqfr ij Jh
f'kodqekj fo'odekZ] okgu pkyd 1⁄4fu;r osru1⁄2 dks
vUrjkZ"Vah; jkedFkk laxzgky;] v;ks/;k] QStkckn esa
osrueku :0 5200&20200 o xzsM osru :0 1900 esa
fjDr okgu pkyd in ds lkis{k okgu pkyd in ij
fofu;fer djrs gq, dk;ZHkkj xzg.k djus dh frfFk ls
rSukr fd;k tkrk gSA

Jh fo'odekZ eq[; fpfdRlkf/kdkjh]
QStkckn ds le{k mifLFkr gksdj viuk LokLF;
ijh{k.k djkdj LoLFkrk izek.k i= ewy:i esa rFkk
vU; 'kSf{kd izek.k i=ksa dh izekf.kr izfr;ksa ds lkFk
mi funs'kd] vUrjkZ"Vah; jkedFkk laxzgky;] v;ks/;k]
QStkckn ds dk;kZy; esa izLrqr djsaxs ,oa vkns'k
fuxZeu dh frfFk ls 15 fnu ds vUnj viuk dk;ZHkkj
xzg.k
djuk
lqfuf'pr
djs
vU;Fkk
mDr
fofu;ferhdj.k Lor% fujLr le>k tk;sxkA"

5. Sri Ghaus Beg, learned counsel for
the petitioner in support of his claim, as
raised
in
the
present
writ
petition
submitted that in fact the order dated
15.09.2017, which provides regularization
to the petitioner with prospective effect, is
contemptuous in nature and while issuing
4 All. Shiv Kumar Vishwakarma Vs. State of U.P. & Ors.
145
the said order, the opposite parties have
ignored the true spirit of the judgment and
order dated 25.01.2017, passed by this
Court.

6. In view of the above, the prayer is
to interfere in the order dated 15.09.2017
passed by the opposite party No. 2, which
as per the counsel for the petitioner is
contrary to the spirit of the judgment and
order dated 25.01.2017.

7. Dr. Udai Veer Singh, learned
Addl. Chief Standing Counsel for the
State-Respondents in support of the order
dated 15.09.2017 submitted that the writ
petition for the main prayers sought by the
petitioner is not maintainable in view of
the Regularization Rules of 2016.

8. It is further stated that in view of
the
provisions
made
under
the
Regularization
Rules
of
2016,
the
retrospective
regularization
i.e.
the
regularization from the initial date of
engagement as daily wager employee
cannot be granted.

9. Heard the submissions made by
learned counsel for the parties and perused
the record.

10. Admittedly, the petitioner was
engaged as daily wager against the post of
Driver on 30.07.1996 and he was allowed
to continue on the said post till December,
2005
and
subsequently,
on
his
disengagement he approached this Court
by means of the Writ Petition No. 1247
(S/S) of 2006, which was disposed of by
means of the judgment and order dated
25.01.2017 with directions to the opposite
parties to consider the case of the
petitioner for regularization in view of the
Regularization Rules as well as the
Government Order applicable. In the
intervening period, the petitioner was
allowed to continue on the strength of the
interim order dated 16.02.2006, passed by
this Court.

11. For the purposes of adjudicating
the issue involved in the present writ
petition, it would be appropriate to take
note of the relevant Rules i.e. Rule(s) 7, 8
and 9 of the U.P. Regularization of
Persons Working on Daily Wages or On
Work-Charge
or
On
Contract
in
Government Departments on 'Group-C'
and 'Group-D' Posts (Outside the Purview
of the U.P. Public Service Commission)
Rules, 2016 , which are quoted below:-

"Appointments

7. The appointing authority
shall, subject to the provisions of subrule(2) of rule 6, make appointments from
the list prepared under sub-rule(6) of the
said rule, in the order in which their
names stand in the list.

Appointments be deemed to be
under the relevant service rules etc.

8. Appointments made under
these rules shall be deemed to be
appointments under the relevant service
rules or orders, if any.

Seniority

9. (1) A person appointed under
these rules shall be entitled to seniority
only from the date of order of appointment
after
selection
for
regularisation
in
accordance with these rules and shall, in
all cases, be placed below the persons
appointed in accordance with the relevant
service rules or, as the case may be, the
regular prescribed procedure, prior to the
appointment of such person under these
rules.

(2) If two or more persons are
appointed together their seniority inter se
146 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be determined in the order mentioned
in the order of appointment."

12. It is apparent from the Rule(s) 7,
8 and 9 of the Regularization Rules of
2016 that a person can be considered in
cadre only from the date of regularization
and not prior to the said date. Further, the
observations and directions issued by this
Court vide judgment and order dated
25.01.2017 passed in the writ petition filed
by the petitioner are also not in support of
the case of the petitioner. Learned counsel
for the petitioner in support of his case has
also not placed any provision or rule or
judgment.

13. The Supreme Court in the case of
Registrar General of India & another
vs. V. Thippa Setty & others, (1998) 8
SCC 690, has held that the regularisation
should
be
prospective
and
not
retrospective so that seniority of those,
who are already in service, is not affected.
This judgement has been followed in the
case of Union of India and others vs.
Sheela Rani (2007) 15 SCC 230.
Reference may also be made to the case of
State of Haryana vs. Jasmer Singh
(1996) 11 SCC 77.

14. Appointment with retrospective
effect is normally not permissible. One of
the reasons being it will adversely affect
others, who have been appointed as per
Service Rules in the interregnum, in
matters of seniority, promotion etc. In a
case
of
regularization
of
service
retrospectivity will adversely affect such
rights of others who have already been
regularly appointed in the regular cadre as
per the Service Rules and are better
placed. It is with this object that the above
quoted Rules are made part of the
Regularization Rules of 2016. Rule 9 of
the Regularization Rules of 2016 contains
a stipulation that those regularized under
these Rules will be placed below those
appointed in accordance with service
Rules prior to them. The Rule makes a
valid distinction between two different
classes of employees, one which is regular
and other not so. There is a rationale basis
for such objective as also nexus with an
object, as referred above.

15. In view of the aforesaid facts, the
writ petition lacks merit and is hereby
dismissed. There shall be no order as to
costs.
----------
(2020)02ILR A146

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ B No. 1445 of 1997

Ram Badan ...Petitioner
Versus
The D.D.C. Azamgarh & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.N. Singh, Sri Karuna Srivastava, Sri
Mayank Krishna, Sri S. Chandel, Sri
Santosh
Kumar
Srivastava,
Sri
V.K.
Chandel, Sri R.C. Singh

Counsel for the Respondents:
S.C., Sri D.K. Pandey, Sri Devesh Kumar
Verma, Sri P.K.S. Paliwal, Sri R.B. Pal, Sri
Suresh Chandra Verma, Sri Imtiaz Ali

A. U.P. C&H Act-challenging-order-depriving the
petitioner-of
his
road
side-valuable
landinherited by him-without assigning any reasonunless-authorities left with no option-under a
compelling circumstance-in violation of settled