# Surendra v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1073
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-26
- **Case number:** Civil Misc. Writ Petition No. 3057 of 2007
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-v-state-of-u-p-ors-43080
- **Pages:** 6

## Headnote

C.S.C., Sri Satish Kumar Mishra

U.P.
Regulation
of
Daily
Wages
Appointment on Group 'D' Post Rules 2001Regularization-petitioner engaged as daily
wages on 18.10.88 continuing on 27.11.06being appointed prior to 29th June 1991continuing in service on 21.12.01-heldentitled for Regularization.

Held: Para-22
From a perusal of number of working
days as mentioned by the petitioner in
his writ petition, which clearly shows
that the petitioner was appointed in the
year 1988 and remained in service and
worked continuously till 2006 even-after
the enforcement of the Regularization
Rules.

Case Law discussed:
2008 (3) ADJ 19; 2013 (3) ADJ 574; 2008 (1)
ADJ 60.

## Text

3 All]. Surendra Vs. State of U.P. & Ors.
1073

29. In Guru Basavaraj @ Benne
Settapa vs. State of Karnataka, (2012) 8
SCC 734, while discussing the concept of
appropriate sentence, this Court expressed
that:

"It is the duty of the court to see that
appropriate sentence is imposed regard
being had to the commission of the crime
and its impact on the social order. The
cry of the collective for justice, which
includes adequate punishment cannot be
lightly ignored."

30. Recently, the Apex Court in the
case of Gopal Singh Vs. State of Uttarakhand
JT 2013 (3) SC 444 held as under:-

"18. Just punishment is the collective
cry of the society. While the collective cry
has to be kept uppermost in the mind,
simultaneously
the
principle
of
proportionality between the crime and
punishment cannot be totally brushed
aside. The principle of just punishment is
the bedrock of sentencing in respect of a
criminal offence............"

31. Reverting back to the medical
reports of Nikki, Rosy and Alshifa, it would
be very important to note that Nikki was a
fifteen year old young girl at the time of
incident and she had sustained acid injury on
the neck, right arm & forearm and right
thigh. Rosy, the wife of the accused had
suffered acid burn injuries on her face, scalp,
left side of neck to right side chest, left arm
& forearm and right arm & forearm, back
and right thigh. Innocent Alshifa, who was
only eleven months old at the time of
incident, was the infant daughter of the
accused and Rosy. What was her fault that
the accused did not spare her also in as much
as her face, chest, lower limbs and multiple
places over the left and right limbs anterior
aspect were also burnt by acid. The conduct
of the accused and the way in which the
offence was committed in predetermined
manner disentitles the accused-revisionist for
any sympathy or leniency from the court.
The learned Magistrate has directed that out
of the fine of Rs.1,00,000/-, injured Rosy
was to be paid Rs.60,000/- while Alshifa and
Nikki were to get Rs.10,000/- (each). Thus,
there is absolutely no ground to reduce the
sentence of imprisonment or the fine
imposed on the accused.

32. Thus, in view of what has been
stated above, there is no ground to
interfere with the impugned judgment and
orders passed by both the Courts below
and this revision is liable to be dismissed.

33. Accordingly, the revision is hereby
dismissed. The revisionist is in jail, as he has
not been enlarged on bail during the
pendency of the revision by this Court. He
will serve out the remaining part of his
sentence of imprisonment and would also
pay fine as directed by the trial Court.

34. Let certified copy of the
Judgment be sent to the trial court for
ensuring compliance which should be
reported to the court within eight weeks.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2014

BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Civil Misc. Writ Petition No. 3057 of 2007

Surendra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.K. Mishra
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Sri Satish Kumar Mishra

U.P.
Regulation
of
Daily
Wages
Appointment on Group 'D' Post Rules 2001Regularization-petitioner engaged as daily
wages on 18.10.88 continuing on 27.11.06being appointed prior to 29th June 1991continuing in service on 21.12.01-heldentitled for Regularization.

Held: Para-22
From a perusal of number of working
days as mentioned by the petitioner in
his writ petition, which clearly shows
that the petitioner was appointed in the
year 1988 and remained in service and
worked continuously till 2006 even-after
the enforcement of the Regularization
Rules.

Case Law discussed:
2008 (3) ADJ 19; 2013 (3) ADJ 574; 2008 (1)
ADJ 60.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Sri S.K. Mishra and Sri
Pankaj Rai, learned Additional Chief
Standing
Counsel
for
the
Staterespondents.

2. By means of the present writ
petition, the petitioner has sought for a
writ of certiorari quashing the order dated
11.10.2006 passed by respondent No. 2
(annexure No. 4 to the writ petition) by
which the department has rejected the
claim
of
the
petitioner
for
his
regularization and further a direction may
be issued to the respondents to permit the
petitioner to work on the class-IV post on
which he was working and pay him
salary.

3. Brief facts giving rise to the
present writ petition are as follows:-

4. The petitioner was engaged as
daily wager on 18.10.1988 as class-IV
employee under the respondent No. 3 and
was discharging his duties accordingly till
27.11.2006. In exercise of power under
proviso to Article 309 of the Constitution,
the State Government has framed U.P.
Regularization
of
Daily
wages
Appointments on Group 'D' Posts Rules,
2001 (hereinafter referred to as "2001
Rules") published in the Gazette dated
21st December 2001 which provides for
regularization
of
such
daily
wage
employees in Group 'D' posts who were
appointed before 29th June 1991 and were
continuing in service on the date of
commencement of said Rules. Since, the
petitioner was appointed prior to 29th
June 1991 and was continuing in service
on 21st December 2001, he claimed that
he was entitled for regularization under
the said Rules.

5. Respondents have filed counter
affidavit stating that the petitioner was
initially engaged in the department on
daily wage basis since 1991 to 2001.
Categorical stand has been taken in
paragraph No. 6 of the counter affidavit
that time to time he had been engaged
only for very limited period and there was
no continuous work performed by the
petitioner in the department. For ready
reference, the details pertaining to his
engagement in the department as averred
in paragraph No. 6 of the counter affidavit
is reproduced herein below:-

1991 1992 1993 1994 1995 1996
1997 1998 1999 2000 2001

48 - 38 295 84 - - 147.5 308 297 289

6. A plea has also been taken that his
engagement was never on regular basis
and his initial engagement was not on
3 All]. Surendra Vs. State of U.P. & Ors.
1075
substantive post. Therefore, the claim of
the petitioner was not sustainable as per
2001 Rules.

7. Learned counsel for the petitioner
drew
attention
of
this
Court
that
respondent No. 3 wrote a letter to the
Chief Medical Officer, Ghaziabad on
04.08.2002,
by
which
details
were
submitted
about
20
daily
wager
employees working under him, so that
their services could be regularized. In the
said seniority list, petitioner was placed at
serial No. 3.

8. Learned counsel for the petitioner
further submitted that the respondent No.
3 vide letter dated 31.07.2004 had
informed the petitioner for submitting the
documents regarding his educational
qualification and for furnishing other
details, in response the details were
submitted by the petitioner promptly. By
the impugned order dated 11.10.2006, the
claim of the petitioner for regularization
was turned down on the ground that his
engagement in the department was
temporary in nature and he never
performed permanently in the department
and his case was not covered as per 2001
Rules.

9. On the other hand, Sri Pankaj Rai,
learned
Additional
Chief
Standing
Counsel submitted that 2001 Rules do not
permit consideration of candidature of
any person for regularization against the
vacancies, which may be available in
future inasmuch a perusal of the said
Rules would make clear that it is one time
arrangement made by the Rule framing
authority in respect to such daily wage
employees, who have rendered about 10
years of service and the said right was
limited against the vacancies, permanent
or temporary, as were available on the
date of commencement of the said Rules
and not for future vacancies.

10. In the present matter, learned
Additional
Chief
Standing
Counsel
submitted that the petitioner was not in
continuous service throughout the period
and not worked continuously, hence his
claim
for
regularization
cannot
be
sustained and the respondents had rightly
rejected the claim of the petitioner for
regularization, which cannot be sustained
as per Rule 4 of the U.P. Regularization
of Daily Wages Appointments on Group
'D' Post Rules, 2001.

11. Learned counsel for the
petitioner has relied upon certain case
laws which are as follows:-

1. Sri Ram Yadav vs. State of U.P.
and others, 2008 (3) ADJ 19.

2. Ram Sajeewan vs. State of U.P.
and others, 2013 (3) ADJ 574.

3. Janardan Yadav vs. State of U.P.,
2008 (1) ADJ 60.

12. Learned counsel for the
petitioner submitted that the case of the
petitioner is squarely covered by these
decisions.

13. Heard the rival submissions of
learned counsel for the parties and
perused the record.

14. A right of regularization cannot
be claimed by a person who has never
been
engaged
or
appointed
after
undergoing
process
of
selection
in
accordance with rules and without equal
opportunity of employment granted to
similarly placed persons under Article 16
of the Constitution of India. The Apex
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, recently, in the case of State of
Karnataka and others Vs. Uma Devi and
Others, 2006(4) SCC 1 has held that
regularization
is
not
a
mode
of
recruitment and a person who has not
been engaged after giving opportunity of
employment to all other eligible persons
and after undergoing the process of
selection
in
accordance
with
rules
consistent with Article 16 cannot claim
regularization.
However,
where
the
legislature has made some provision, the
incumbents have been allowed benefit
thereunder and may be considered for
regularization. Referring to various earlier
judgements on this aspect, recently, the
Apex Court in M.P. State Corporation
Bank Limited, Bhopal Vs. Nanuram
Yadav & others JT 2007 (11) SC 369 has
culled out the following principles in
para-20 of the judgment :

"(1) The appointments made without
following the appropriate procedure under
the Rules/Government Circulars and without
advertisement or inviting applications from
the open market would amount to breach of
Arts. 14 & 16 of the Constitution of India.

(2) Regularization cannot be a mode
of appointment.

(3) An appointment made in violation
of the mandatory provisions of the statute
and in particular, ignoring the minimum
educational
qualification
and
other
essential qualification would be wholly
illegal. Such illegality cannot be cured by
taking recourse to regularization.

(4) Those who come by back door
should go through that door.

(5) No regularization is permissible
in exercise of the statutory power
conferred
under
Art.
162
of
the
Constitution of India if the appointments
have been made in contravention of the
statutory Rules.

(6) The Court should not exercises its
jurisdiction on misplaced sympathy.

(7) If the mischief played so
widespread and all pervasive, affecting
the result, so as to make it difficult to pick
out the persons who have been unlawfully
benefited or wrongfully deprived of their
selection, it will neither be possible nor
necessary to issue individual show-cause
notice to each selectee. The only way out
would be to cancel the whole selection.

(8) When the entire selection is
stinking, conceived in fraud and delivered
in deceit, individual innocence has no
place and the entire selection has to be set
aside."

15. Since the facts are not is dispute
and it is also not disputed that the
petitioner was engaged on daily wage
basis in 1988, i.e., before 29.6.1991 and
was also working on the date of
commencement of Rules 2001, i.e, on
21.12.2001, thus it is evident that he was
entitled
to
be
considered
for
regularization under the said Rules. The
only question for consideration is whether
the said Rules require continuous service
throughout, i.e., from the date of initial
engagement till the commencement of the
Rules. In my view, there is no such
requirement under the Rules as is
apparent from perusal thereof. Rule 4(1)
of Rules 2001 is reproduced as under:

"4. Regularization of daily wages
appointments on Group ''D' posts.- (1)
Any person who-
3 All]. Surendra Vs. State of U.P. & Ors.
1077

(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."

16. The only requirement under Rule
4(1)(a) are that the incumbent was directly
appointed on daily wage basis on a Group 'D'
Post in a Government Service before
29.6.1991 and is continuing in service as
such on the date of commencement of the
said Rules. The further requirement under
Clause (b) of Rule 4(1) is that he must have
possessed requisite qualification required for
regular appointment on that post at the time
of such employment on daily wage basis.

17. Respondents have not disputed
the existence of all the said three
conditions but their further presumption
that
the
Rules
also
contemplates
continuous service throughout from the
date of initial engagement till the date of
commencement of the Rules and only
then a person appointed on daily wage
basis would be entitled for regularization
is not sustainable and contrary to the
Rules 2001.

18. A perusal of clause (a) of Rule 4
of the said Rules indicates that a person,
who was directly appointed as daily wage
basis on a Group-D post in the
Government service before 29th June,
1991 and was continuing in service,
would be considered for regularization.

19. In Ram Sajeewan case (supra),
the Court has also considered the break in
service or artificial break in service.
Paragraph 5 of the said judgement reads
as under:

5. The question is, whether break in
service or artificial break in service
would constitute a disability for ousting
the claim of the petitioner. Rule 4 does
not indicate anything, nor does it indicate
that a daily wager should be in
continuous service. All that Rule 4 (a) of
the Rules of 2001 provides is that a
person should be appointed on a daily
wage basis prior to 29th June, 1991 and
is continuing in service on the date of
commencement of the Rules of 2001.
Artificial break in service is to be ignored
and cannot be taken into consideration
nor does the Rule provide that the person
should be in continuous service. The very
nomenclature of the term "daily wager"
does not indicate continuous service.

20. In Sri Ram Yadav case (supra),
the question of artificial break was also
considered. Paragraph 5 of the said
Judgment, which reads as under:

5. The contention of the learned
counsel for the petitioner is that the
rejection of the petitioner's representation
on the above ground is against the record
and the order is based on incorrect facts.
He has placed the report of the Forest
Range Officer, Kalakanker, which was
submitted by him in pursuance of the
letter of the Divisional Director, Social
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
Forestry dated 25-10-2004. In the said
report he had given the break up of the
petitioner's working. It shows that the
petitioner has worked for 348 days in the
year 1990-91, 350 days in the year 1991-92,
351 days in the year 1992-93, 355 days in
the year 1993-94, 353 days in the year 199495 and 230 days in the year 1995-96. He has
also drawn my attention to the counter
affidavit of respondents in earlier with
petition No. 19670/02 filed by the petitioner,
wherein it was clearly admitted by the
respondents in paragraph 5 of the Counter
affidavit that the petitioner had regularly
worked from the year 1978-79 to 1994-95
and had also worked for 230 days in the
year 1995-96 and 180 days in the year
1996-97. Therefore, in view of the
admission of respondents on record the
recital in the impugned order that the
petitioner had not worked for a single day
between the year 1991 and 1996 is
factually incorrect and against the
records. Accordingly, the rejection of the
representation of the petitioner on the
above ground is wholly unsustainable
and, as such, the impugned order
deserves to be quashed.

21. In Janardan Yadav case (supra),
this Court while considering the matter of
regularization of a class-IV employee
under the U.P. Regularization of Daily
Wages Appointment on Group 'D' Posts
Rules, 2001 has held that for the purpose
of regularization, the only requirement is
that the incumbent should have been
appointed directly on the daily wages
before
29.6.1991
and
should
be
continued, as such, on 21.12.2001. The
said rules nowhere requires that such an
incumbent seeking regularization would
have worked throughout continuously
from the date of his initial appointment
till the date of enforcement of the rules.

22. From a perusal of number of
working days as mentioned by the petitioner
in his writ petition, which clearly shows that
the petitioner was appointed in the year 1988
and remained in service and worked
continuously
till
2006
even-after
the
enforcement of the Regularization Rules.

23. Accordingly, the impugned
order dated 11.10.2006 is hereby set aside
and quashed. The matter is remanded to
the authority concerned to reconsider the
matter.

24. In view of the above, the writ
petition is allowed and the respondents
are directed to reconsider the matter of the
petitioner for regularization in the light of
the observations made above within six
weeks from the date of production of a
certified copy of this order.

25. In the result, the writ petition
succeeds and is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Service Single No. 3282 of 2006

Krishna Kant Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar Srivastava, Smt. Seema
Srivastava

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service
law-consequential benefits-entitlement-