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Shyam Dubey v. State of U.P. and 2 Others

Allahabad HC21 Jan 2020SPLA/983/2014

Case brief

AI extract

What is this about?

Shyam Dubey v. State of U.P., SPECIAL APPEAL No. 983 of 2014, decided 21.1.2020 (Chief Justice's Court; Govind Mathur, C.J. and Samit Gopal, J.). Keywords: retrospective regularization; ad hoc appointment; amended Rule 4; U.P. Regularization of Adhoc Appointments Rules 1979; Third Amendment Rules 2001; regularization from date of amendment (20.12.2001) versus date of order; unexplained State delay; substantive vacancy; regular pay scale; proviso to Article 309; Contempt of Courts Act 1971 compliance; Writ-A No. 10298 of 1991; Writ-A No. 6837 of 2011; Chief Development Officer Kanpur Nagar.

What did the court decide?

Appeal allowed; order of learned Single Bench dated 4.9.2014 set aside; order dated 15.10.2010 of the Chief Development Officer, Kanpur Nagar modified so that the appellant's regularization is treated as effective from 20.12.2001.

Shyam Dubey Vs State of U.P. and 2 Others — Contempt of Court | Allahabad HC (2020)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the appellant, appointed ad hoc as driver on 6.11.1987 and covered by amended Rule 4 of the Rules of 1979, was entitled to regularization with effect from 20.12.2001 (date of the amendment) rather than from the date of the regularization order dated 15.10.2010. +1 more

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Court's answer

Rule 4 of the Rules of 1979 creates a right in favour of ad hoc appointees employed prior to June 30, 1988 for regularization of their services on completion of three years of service in ad hoc capacity.

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Ratio / Principle

The appellant entered service on 6.11.1987 on ad hoc basis, completed three years of service in 1990, and a right for consideration for regularization accrued to him on introduction of the amendment to Rule 4.

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Key takeaways

The respondents had no justifiable reason for denying regularization to the appellant for about a decade despite the right created by amended Rule 4.ratio¶15
The appellant's appointment was in a regular pay scale against a substantive vacancy, so a vacancy was already available when the Rules were amended; the other requisites stood satisfied, as borne out by his placement in the regular cadre in 2010.ratio¶15
The appellant is entitled to be regularized in service from the date the amendment to the Rules of 1979 was introduced, i.e., 20.12.2001.

Detailed headnote1 paragraphs

Special Appeal allowed. An ad hoc driver appointed on 6.11.1987 against an existing vacancy, who completed three years of ad hoc service in 1990, was entitled to regularization from 20.12.2001, the date of introduction of amended Rule 4 of the U.P. Regularization of Adhoc Appointments Rules, 1979 (Third Amendment Rules, 2001), and not merely from the date of the subsequent regularization order dated 15.10.2010. Rule 4 confers a right on ad hoc appointees employed prior to 30.6.1988 with three years' service to be considered for regular appointment; the State's failure to act on the Rule for about a decade, absent any justifiable reason, could not deprive the appellant of the benefit. His appointment being in a regular pay scale against a substantive vacancy, a vacancy existed when the Rules were amended, and the remaining requisites stood satisfied as shown by his placement in the regular cadre in 2010. The Single Bench order dated 4.9.2014 (Writ-A No. 6837 of 2011) was set aside and the Chief Development Officer, Kanpur Nagar's order dated 15.10.2010 modified to treat regularization as effective w.e.f. 20.12.2001.

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Chief Justice's Court

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Case :- SPECIAL APPEAL No. - 983 of 2014

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Appellant :- Shyam Dubey Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Bhoopendra Nath Singh,Devendra Pratap Singh Counsel for Respondent :- C.S.C.

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Hon'ble Govind Mathur,Chief Justice Hon'ble Samit Gopal,J.

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This appeal is preferred to question correctness of the order dated 4.9.2014 passed by learned Single Bench in Writ-A No. 6837 of 2011.

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In brief, factual matrix of the case is that an appointment was accorded to the appellant-petitioner on adhoc basis as driver with effect from 6.11.1987. The appointment so given was for a period of two months but against an existing vacancy. The appointment was extended time to time and the appellant was allowed to continue in services for years together.

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The Governor of the State of U.P. in exercise of the powers conferred under proviso to Article 309 of the Constitution of India introduced an amendment in the U.P. Regularization of Adhoc Appointments (On Post Outside the Purview of Public Service Commission), Rules 1979 by the U.P. Regularization of Adhoc Appoints (On Posts Outside the Purview of Public Service Commission) (Third Amendment) Rules, 2001. As per amended Rule 4 of the Rules of 1979, any person, who was directly appointed on adhoc basis on or before 30th June, 1988 and is continuing in service as such on the date of commencement of U.P. Regularization of Adhoc Appointments (On Posts Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001, if has completed three years of service, shall be considered for regular appointment in permanent or temporary vacancy, as may be available, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant rules or orders.

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In the light of provisions aforesaid, the appellant-petitioner claimed for regularization of his service on the post of driver. No decision thereon was taken by the respondents, hence, the appellant-petitioner preferred a petition for writ (Writ-A No. 10298 of 1991). The said writ petition came to be disposed of under an order dated 17.3.2010 with a direction to the

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respondents to consider the case of the petitioner in accordance with applicable provisions.

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On being failed to have compliance of the given directions, an application was preferred by the appellant-petitioner to initiate proceedings in Contempt of Courts Act, 1971 against the officers alleged to have disobeyed the court's order. The contempt petition preferred by the appellant-petitioner came to be disposed of on 15.9.2010. After disposal of the contempt petition, the Chief Development Officer, Kanpur Nagar passed an order dated 15.10.2010 regularizing the services of the appellant/petitioner with effect from the date of issuance of the order. Being aggrieved by the order dated 15.10.2010, to the extent of date of regularization, the appellant-petitioner preferred a petition for writ that came to be dismissed vide order dated 4.9.2014. Learned Single Bench while dismissing the petition for writ arrived at the conclusion that regularization in service could have been made only from the date of passing the order for regularization as the Rules nowhere provide regularization from the date earlier to the date of order of regularization.

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In appeal, the argument advanced by learned counsel appearing on behalf of the appellant is that a right accrued in favour of the appellant on amendment of the Rule 4 of the Rules of 1979 and according to that it was obligatory for the respondents to consider case of the appellant for regularization. The inaction on part of the respondents, as per learned counsel for the appellant, could not have been a reason for denying benefits arising out of the amended provision to the appellant for a period of good ten years.

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While opposing the appeal, learned Standing Counsel states that learned Single Bench rightly arrived at the conclusion that no benefit of regularization could have been given with a retrospective effect.

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Heard learned counsels for the parties, considering the argument and perused the relevant Rules.

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As already stated, Rule 4 of the Rules of 1979 creates a right in favour of adhoc appointees employed prior to June 30, 1988 for regularization of their services on completion of three years service in adhoc capacity. The appellant-petitioner at the first instance entered in service of the respondent on 6.11.1987 on adhoc basis. He completed three years of service in the year 1990, however, a right for consideration to be regularized in service accrued to him on introduction on amendment of Rule 4 in the Rules of 1979. The respondents should have considered

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the case of appellant for regularization in accordance with Rules of 1979 as soon as possible on amendment in Rule 4 ibid. The respondents for no just reason did not choose to act upon the Rules, till having a writ by the appellant. If the consideration as per Rule 4 would have been made diligently, the appellant would have been regularized in service long back. As a matter of fact no justifiable reason is available with respondents for denying the regularization in service to the appellant for about a decade. Pertinent to State that the appointment of the petitioner was given in regular pay scale against a substantive vacancy and, therefore, on the date, the Rules were amended, a vacancy was already available with the respondents and as such the appellant-petitioner became entitled to be considered to hold the post aforesaid on satisfying the other requisites. The other requisites to have been satisfied by the appellant-petitioner as that is apparent from the fact that ultimately in the year 2010, the respondents placed the appellant-petitioner in regular cadre. In view of it, the appellant is entitled to be regularized in service from the date when the amendment was introduced of the Rules of 1979 i.e. 20.12.2001.

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Accordingly, the appeal is allowed and the order passed by learned Single Bench dated 4.9.2014 is set aside. The order dated 15.10.2010 passed by the Chief Development Officer, Kanpur Nagar is modified and the regularization of the appellant in service is to be treated w.e.f. 20.12.2001.

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Order Date :- 21.1.2020 AKK

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(Samit Gopal,J.) (Govind Mathur,C.J.)

Shyam Dubey v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Shyam Dubey v. State of U.P. and 2 Others

Case brief

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