# State of U.P. & Ors v. Raj Kumar Srivastava

- **Citation:** (2022) 5 ILRA 1081
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** Spl. Appeal D No. 473 of 2021
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-raj-kumar-srivastava-48406
- **Pages:** 6

## Headnote

A. Service Law - The U.P. Regularisation
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 - Rule 2(iii),
6(3)

The respondent is seeking regularisation
under the Rules 2(iii) of 2016. The criteria
given under the said Rules requires the
respondent to be employed in a scheme or
project of the State or Government of India
sponsored programmes but also that he
should have been employed on consolidated
pay/fixed honoraria. Since the respondent is
employed on daily wage basis therefore
exclusion as envisaged in Rule 2(iii) will not
cover him and therefore he is not entitle to
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
seek regularisation under the said Rules.
(Para 15)

It is further observed that by virtue of Rule
6(3)
the
appointing
authority
shall
constitute a Selection Committee which
shall consider the cases of the candidates
on the basis of their records and can even
hold interview of the candidates, if find
necessary. (Para 17)

The respondent-employee has been employed
under the free-boring scheme which is
perennial in nature and therefore denial of
regularisation in service to such an employee
would
be
unfair.
The
Court,
therefore,
directed
the
competent
authority
to
reconsider the regularisation in accordance
with Rule 6 of 2016. (Para 20)

Special Appeal Disposed of. (E-10)

## Text

5 All. State of U.P. & Ors. Vs. Raj Kumar Srivastava
1081
disproportionate to the offence committed
by the petitioner. In fact the Central
Reserve Police Force itself considers
absenting without cause to be a "less
heinous offence" and for which the
punishment also ought to have been a little
lesser. The Court also considers that the
punishment awarded to the petitioner
exceeded the offence. The punishment was,
therefore, definitely disproportionate to the
offence which was committed by the
petitioner.

9. Under such circumstances, the
order dated 20.3.1992 passed by the
Commandant,
127th
Battalion,
Central
Reserve Police Force, Allahabad, the order
dated 27.4.2005 passed by the Appellate
Authority and the order dated 5.9.2005
passed by the Revisional Authority are
quashed and are set-aside. The petitioner
could
have
been
awarded
a
minor
punishment of fine etc. in the shape of
stoppage of a few months' salary. The
petitioner shall now be reinstated in service
with all backwages. However, the wages of
three months shall not be paid to the
petitioner which stoppage shall be considered
as a fine imposed upon the petitioner.

10. The writ petition is, accordingly,
partly allowed.

16. So even if the application is
registered as complaint case even then under
process of inquiry Magistrate has ample
power to direct for investigation to be made
by police officer or by such officer as he
thinks fit. So at the stage of inquiry under
section 202 Cr.P.C. Magistrate may opt for
that.

17. Considering the entire facts and
circumstances and the legal proposition there
appears to be no necessity for interference.
The impugned order passed by the learned
Magistrate is sound and reasoned one and
does not suffer from any illegality.

18. The application U/s 482 Cr.P.C.
is devoid of merit and is hereby dismissed.
----------
(2022)05ILR A1081
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Spl. Appeal D No. 473 of 2021

State of U.P. & Ors. ...Appellants
Versus
Raj Kumar Srivastava ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Avinash Kant Tripathi

A. Service Law - The U.P. Regularisation
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 - Rule 2(iii),
6(3)

The respondent is seeking regularisation
under the Rules 2(iii) of 2016. The criteria
given under the said Rules requires the
respondent to be employed in a scheme or
project of the State or Government of India
sponsored programmes but also that he
should have been employed on consolidated
pay/fixed honoraria. Since the respondent is
employed on daily wage basis therefore
exclusion as envisaged in Rule 2(iii) will not
cover him and therefore he is not entitle to
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
seek regularisation under the said Rules.
(Para 15)

It is further observed that by virtue of Rule
6(3)
the
appointing
authority
shall
constitute a Selection Committee which
shall consider the cases of the candidates
on the basis of their records and can even
hold interview of the candidates, if find
necessary. (Para 17)

The respondent-employee has been employed
under the free-boring scheme which is
perennial in nature and therefore denial of
regularisation in service to such an employee
would
be
unfair.
The
Court,
therefore,
directed
the
competent
authority
to
reconsider the regularisation in accordance
with Rule 6 of 2016. (Para 20)

Special Appeal Disposed of. (E-10)
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Subhash Vidyarthi, J.)

Order on the Delay Condonation
Application

1. Having regard to the facts stated in
the affidavit filed in support of the
application seeking condonation of delay,
the application is allowed and the delay in
preferring the special appeal is hereby
condoned.

Order on the Appeal

2. Heard Shri Jaideep Narain Mathur,
learned Senior Advocate assisted by Shri
V.P. Nag, learned State Counsel for the
appellant-State authorities and Shri D.N.
Shukla, learned counsel for the sole
respondent.

3. Under challenge in this intra-court
appeal is the judgment and order dated 2109-2021 passed by the learned Single Judge
in Writ Petition No. 604 (S/S) of 2021
whereby the writ petition has been allowed
and the appellant-State authorities have
been directed to regularize the services of
the
respondent-petitioner
under
the
provisions
of
The
Uttar
Pradesh
Regularisation 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
(hereinafter referred to as ''2016 Rules).

4. Further direction issued by the
learned Single Judge is that if there no
vacancy is available, the appellants shall
create a supernumerary post so that
services
of
the
respondent
may
be
regularized against such post.

5. Shri Mathur, learned Senior
Advocate has contended that the judgment
and order dated 21-09-2021 passed by the
learned
Single
Judge
is
apparently
erroneous for the following two reasons:

(i) That Rule 6 (3) of 2016 Rules
clearly mandates that for the purposes of
considering regularisation of a daily
wager or a work charged employee or an
employee working on contract basis, the
appointing authority has to constitute a
Selection Committee in accordance with
the relevant provisions of the service
Rules
and
thereafter
the
Selection
Committee is required to consider the
cases of the candidates on the basis of
their records and that the Selection
Committee, if it considers necessary, may
also interview the candidate to assess his
suitability whereas the learned Single
Judge while passing the judgment and
order under appeal appears to have lost
5 All. State of U.P. & Ors. Vs. Raj Kumar Srivastava
1083
sight of the said Rules and has directed
the appellant to regularize the services of
the respondent without consideration by
the Selection Committee and;

(ii) That 2016 Rules clearly exclude
from
its
ambit
the
person/persons
engaged/employed in a scheme or project
of the State Government or Government of
India sponsored programmes and since
engagement of the respondent was made in
a scheme known as "free-boring scheme"
hence he is not covered by 2016 Rules and
accordingly the direction issued by the
learned Single Judge in the order under
appeal is vitiated.

6. On the other hand learned counsel
representing the respondent has opposed
the prayers made in this special appeal and
has submitted that the order under appeal
passed by the learned Single Judge does not
warrant any interference and hence the
special appeal is liable to be dismissed at
its threshold.

7. We have considered the rival
submissions made by the learned counsel
representing the respective parties and have
also gone through the records available
before us on this special appeal.

8.

Before
adverting
to
the
submissions made by the learned counsel
for the parties certain background facts
which are necessary to be noticed in this
case are being stated.

9. The respondent is said to have been
engaged in a scheme of the State
Government
known
as
"free-boring
scheme" on daily wages w.e.f 1st of
October, 1990 without any written order.
He is said to have continued in the said
capacity, however, in the year 1997 the
services of the respondent were dispensed
with which led the respondent to file Writ
Petition No. 284(S/S) of 1998. However,
the said Writ Petition No. 284(S/S) of 1998
was dismissed on the ground of availability
of an alternative remedy under the Labour
Laws and accordingly this Court by means
of the judgment and order dated 23-111998 refused to entertain the said writ
petition by observing that the respondent
has an efficacious and alternative remedy.
Subsequent to dismissal of the said writ
petition by this Court on 23-11-1998 the
matter was referred to the Labour Court
which gave its award on 09-02-2005
wherein it was provided that the respondent
shall be reinstated in service however he
will not be entitled to any back wages. The
said award by the Labour Court dated 0902-2025 came to be challenged by the
appellant-State authorities before this Court
by means of filing a Writ Petition no. 841
(S/S) of 2005. The said writ petition was
dismissed by means of judgment and order
dated 07-11-2006. Challenging the said
order passed by this Court, the appellantState authorities preferred Special Leave to
Appeal (Civil) No. 6727 of 2008 which too
was dismissed by the Apex Court by means
of the judgment and order dated 10-022012.

10. Prior to dismissal of the aforesaid
Special Leave to Appeal by the Apex
Court, the respondent was reinstated on 2201-2007. He thereafter, filed Writ Petition
No.
19401
(S/S)/2019
claiming
his
regularisation which was decided by means
of the judgment and order dated 18-072019 whereby the apellant-State authorities
were directed to consider the representation
moved by him seeking his regularisation. In
compliance of the order dated 18-07-2019
passed by this Court in Writ Petition No.
19401 (S/S)/2019 the matter relating to
regularisation of services of the respondent
was considered by the appellant-State
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities which was rejected by means of
the order dated 19-09-2019. It is this order
dated 19-09-2019 which became the
subject-matter of challenge before this
Court in Writ Petition No. 604 (S/S) of
2021 which has been decided by the
judgment and order dated 21-09-2021
which is under appeal herein.

11. If we consider the submissions
made by the learned Senior Advocate
representing the appellant-State authorities
what we find is that the contention on
behalf of the appellants regarding exclusion
of the respondent from operation of the
2016 Rules is absolutely misconceived.

12. As observed above learned Senior
Advocate has relied upon Rule 2(iii) of the
2016 Rules and submitted that since the
respondent was initially appointed on daily
wage basis in a scheme known as "freeboring scheme", as such 2016 Rules will
have
no
application
and
hence
the
respondent
was
not
entitled
to
be
considered for regularisation of his services
under the said Rules.

Rule 2 of the 2016 Rules is extracted
hereinbelow:-

"2. These rules shall not apply for
regularisation of:

(i)
Seasonal
Collection
Ameen/Seasonal Peon;

(ii)
Person/Persons
engaged/employed/deployed for seasonal
works
in
Horticulture
Department,
Agriculture
Department,
Agriculture
Education Department and such similar
Departments;

(iii)
Person/Persons
engaged/employed/deployed
on
consolidated pay/fixed honoraria in the
scheme/projects of State Government or
Government
of
India
sponsored
programmes;

(iv)
Person/Persons
engaged/employed/deployed as Home
Guard Volunteer and Prantiya Rakshak
Dal Volunteer;

(v)
Person/Persons
engaged/employed/deployed as Shiksha
Mitra and Kisan Mitra;

(vi)
Person/persons
engaged/employed/deployed
under
MNREGA Scheme (Rural Development
Department);

(vii)
Person/Persons
engaged/
employed/deployed
in
Aaganbadi
Kendra (Women and Child Welfare
Department);

(viii)
Person/persons
engaged/employed/deployed
as
Asha
Bahu (Medical Health and Family
Welfare Department);
(ix) Such person/persons or group of
persons
as
notified
by
the
State
Government from time to time.

13. The aforesaid 2016 Rules carve
out certain exclusions where the said Rules
will not operate.

14. Sub Rule 2 (iii) of 2016 Rules
provides that 2016 Rules will have no
application in case a person is engaged or
employed or deployed on consolidated
pay/fixed
honoraria
in
the
scheme/projects of State Government or
Government
of
India
sponsored
programmes. What is to be noticed in
Rule 2(iii) for exclusion of 2016 Rules it
is that is not only that the person seeking
regularisation under the said Rules should
have been employed in a scheme or
project of the State or Government of
India sponsored programmes but also that
he should have been employed on
consolidated pay/fixed honoraria.
5 All. State of U.P. & Ors. Vs. Raj Kumar Srivastava
1085

15. There is no dispute, so far as the
present
case
is
concerned,
that
the
respondent
was
never
employed
on
consolidated pay/fixed honoraria in the
scheme known as free-boring scheme;
rather he was always employed on daily
wage basis. Thus, in our considered
opinion exclusion as envisaged in Rule 2
(iii) of 2016 Rules will not cover those
employees, even if they have been
employed in a scheme or project, who are
paid their remuneration on daily wage
basis. It is needles to say that there always
exists a difference between remuneration
paid on consolidated pay/fixed honoraria
basis and remuneration paid on daily wage
basis.

16. In the aforesaid view of the
matter, we are not impressed by the
argument advanced by the learned counsel
for the appellant-State authorities that by
operation of rule 2(iii) of 2016 Rules the
respondent shall not be entitled to seek
regularisation under the said Rules.

17. However, having observed as
above, what we also notice is that sub-rule
(3) of Rule 6 of 2016 Rules clearly
mandates
that
for
the
purposes
of
consideration of regularisation of a daily
wager under sub-rule (1) of Rule 6 of 2016
Rules, appointing authority shall constitute
a Selection Committee in accordance with
the relevant provisions of the service Rules.
The occurrence of the word ''shall' in subrule (3) of rule 6 of 2016 Rules thus makes
its mandatory that for the purposes of
regularisation of any daily wager or work
charged employee, the appointing authority
has to constitute a Selection Committee.
Sub Rule (5) of rule 6 of 2016 Rules further
provides that the Selection Committee
''shall' consider the cases of the candidates
on the basis of their records and if the
Selection
Committee
considers
its
necessary, it may even hold the interview
of the candidate seeking regularisation of
his services, for the purposes of assessing
their suitability. Thus, as per the scheme
enunciated in rule (6) of 2016 Rules,
without assessment of the suitability of a
daily wager/work charge employee by a
Selection Committee to be constituted by
the appointing authority in terms of the
relevant service rules, no regularisation can
be made.

18. In this view of the matter, what
we find is that the learned Single Judge
appears to have lost sight of the provisions
contained in sub-rule (3) and sub-rule (5) of
Rule 6 of 2016 Rules. Even otherwise, it is
the employer who needs to judge the
suitability
of
an
employee
seeking
regularisation of his services and the
satisfaction of the employer for the purpose
of regularizing the service of a daily
wager/work charge cannot be substituted
by the satisfaction of this Court.

19. It is also noticeable that though
learned Single Judge while has allowed the
writ petition, however, the order dated 1909-2019 has not been set aside.

20. When we peruse the order dated
19-09-2019 what we find is that the only
reason indicated therein is that the
respondent is not covered by 2016 Rules in
terms of the provisions contained in rule 2
(iii) of the 2016 Rules. As observed above,
rule 2(iii) of 2016 Rules will have no
application in the present case for the
reason that though the respondent was
employed in a scheme known as freeboring scheme, however, he was not
employed on consolidated/fixed honoraria
basis. The free-boring scheme as is clear
from the perusal of the Government Order
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 31st of May 2016 has been in vogue
in the State of U.P. since February 1983.
There is no denial of the fact that the
scheme is perennial in nature and as such
denial of regularisation in service to an
employee who is working in such a scheme
which is perennial in nature, in our
considered opinion, would amount to unfair
labour practice. Such a practice is not
expected from a modern employer like
State, that too, in a welfare State. Such a
practice is clearly exploitative for the
reason that the scheme is not time bound; it
has been continuing since 1985 and as on
date there is no likelihood of the scheme
being discontinued.

21. On the aforesaid counts, we find
that the reasons indicated by the appellantState authorities while passing the order
dated 19-09-2019 are not tenable.

22. For the reasons given and discussion
made above, this special appeal is disposed of
with the following directions and orders:-

(A) The order dated 19-09-2019
passed by the Executive Engineer (Minor
Irrigation),
Division
Raebareli
as
is
available at page 116 of this special appeal
is hereby quashed.

(B)
The
competent
authority
is
directed to reconsider the matter of
regularisation
of
the
respondent
in
accordance with rule 6 of 2016 Rules after
constituting the Selection Committee as
provided in sub-rule 3 of Rule 6 of 2016
Rules within a period of two months from
the date a certified copy of this order is
produced before the competent authority.

(C) Since we have quashed the order
dated 19-09-2019 as such the reasons given
therein will not constitute a valid reason for
denying the benefit of regularisation in
services to the respondent and when the
matter is considered afresh under this order
the Selection Committee shall only judge
the suitability as per the requirement of the
rule 6 of 2016 Rules.

(D) Judgement and order dated 21-092021 passed by learned Single Judge in
Writ Petition No. 604 (S/S) of 2021, shall
stand modified to the extent aforesaid.

23. There shall be no order as to costs.
----------
(2022)05ILR A1086
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 2894 of 2022

Zuhair Bin Saghir ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Hemant Kumar Mishra, Arti Ganguly

Counsel for the Respondents:
C.S.C.

A. Service Law - The Waqf Act, 1995 -
Section 51 - U.P. Vigilance Establishment
Act, 1965 - Section 2(2) - Urban Land
(Ceiling
Regulation)
Act,
1986
-
Prevention of Corruption (Amendment)
Act, 2018 - Sections 7 & 13(1) A read with
13(2) - I.P.C., 1860 - Sections 409 & 120B - Prevention of Corruption Act, 1988 -
Sections 19(3)(b), 7 & 13

The petitioner along with other revenue officers
were found involved in acts of corruption. The
petitioner contended that the Government
orders issued from time to time governing
enquiry on a complaint filed against the
government servant was not complied. The
Court, on perusal of government orders,
observed that it is always open for the