HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 41/ 02 (S/S) Sinchai Karamchari Maha Parishad & others Vs Chief Engineer and others Approved for reporting. _____________________ Not approved for reporting Date of decision 30.3.06 Initial of Judge 2 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 41 (SS) OF 2002 1. Sinchai Karamchari Maha Parishad Uttaranchal, through State Present Barkhu Lal Maurya, Having its Head Office at Sinchai Bhawan, Yamuna Colony, Dehradun. 2. Barkhu Lal Maurya, S/o Sri Budh Ram Maurya, Sinchai Bhawan, Yamuna Colony, Dehradun. …..Petitioner. Versus 1. Chief Engineer and Head of the Department, Irrigation Department, Uttaranchal, Dehradun. 2. Superintendent Engineer (Personnel) at office of the Chief Engineer and Head of the Department, Irrigation Department Uttaranchal, Dehradun. 3. Chief Engineer (Yamuna) Yamuna Colony, Dehradun. 4. State of Uttaranchal, through Irrigation Secretary, Uttaranchal, Dehradun. 5. Engineer in Chief Irrigation Department, U.P. Lucknow. 6. State of U.P., through Irrigation Secretary, Lucknow. ………..Respondents. Dated: 30.03.2006 Hon’ble Rajesh Tandon, J. Heard Sri M.C. Pant, Advocate for the petitioners and Standing Counsel for the respondents. 2. By the present writ petition, the petitioner has prayed for a writ of Certiorari quashing the orders (Annexure Nos. 8 and 10 to this writ petition). Further prayer has also 3 been made for a writ of mandamus commanding the respondents to regularize the service of petitioners, who are in work charge establishment as per the order of Apex Court and order dated 08.02.1997 and 24.09.1997. 3. Brief facts giving rise to the present writ petition according to the petitioners the petitioner no. 2 is working in the Work Charge establishment since a considerable long time and other members of the petitioner Union are also similarly situated persons and working in the Work Charge establishment. 4. The contention of the petitioners is that since the petitioner no. 2 as well as other members of the Union have completed more than five years service in the Work Charge establishment, therefore, they have become entitled to be considered for regularization in view of the judgment passed by the Hon’ble Apex Court in Raj Narayan Prasad and Others Vs. State of U.P. and others (1998) 8 SCC 473 and Government Order dated 07.02.1997 (Annexure No. 2 to the writ petition). 5. In Raj Narayan Prasad and Others Vs. State of U.P. and others (1998) 8 Supreme Court Cases 473, Apex Court has considered regarding work charged employees who are on muster roll. The observations are quoted below:- 1. The question is regarding the regulatisation of work-charged employees and muster-roll labour employed on difference projects by the State of U.P. at different points of time. The respondent-State has furnished a list of almost 13 thousand such employees employed zonewise as per Annexure ‘A-1’ to the additional affidavit on behalf of the State. These are divided into two groups, namely, 7744 work-charged 4 employees and 5516 muster-roll employees who came to be regularized pursuant to orders made by this Court from time to time since after 16.03.1993 is appended as Annexure ‘A-4’. Annexure ‘A-5’ gives the list of vacant posts available in the regular establishment at the relevant point of time. The State of U.P. also contends that on account of financial constraints, it was forced to slow down the pace of work for as many as 7 important projects. Pursuant to our order dated 11.10.1993 and in the light of the observations made in the State of Haryana V. Piara Singh we are told that the State has prepare a Scheme, the details whereof are given in the additional affidavit, para 6. According to this Scheme, broadly stated, the State has undertaken to regularize work-charged employees employed prior to 19.09.1985 who possess qualification for regular appointment on an equivalent post in the service of the establishment, i.e. who qualify under the recruitment rules in force for that post. The age criteria, however, would be relaxed but other qualifications for eligibility would have to be satisfied. The State has to prepare a seniority list of work-charged personnel on the basis of those who are qualified under the relevant recruitment rules and thereafter regularization has to take place strictly in accordance with seniority. The estimated vacancies in the years 1993-94 are indicated and the projection for the specific years insofar as vacancies are concerned is estimated and mentioned in the additional affidavit. As regards daily-wage/muster-roll personnel, it is stated that since their work is of a contingent nature, it is not possible to regularize them unless suitable posts are required and created under the rules. The 5 regularization of daily-paid employees and muster-roll employees of the Irrigation Department, contends the deponent, is beyond the planning of the State and its financial capacity. To put it differently, therefore, the State has prepared a regularization scheme so far as work-charged employees are concerned but as expressed its inability to prepare any such scheme for daily-rated/muster-roll employees. We have carefully perused the proposed scheme in regard to work- charged employees and we felt that in clause ‘D’ of the cadre strength from year to year and based on the past requirement and continuity of work-charged employees, the cadre strength should be increased by a certain percentage of the work-charged employees work over a period of time that may be fixed by the Government so that the pace of regularization is accelerated and is not the same as obtaining in the past. For example, if 100 work-charged employees have been required throughout a period of time it could reasonably be estimated that even if shedding takes place, a certain percentage of those employees would certainly be retained and a part of them could be absorbed by increasing the cadre strength to that extent. An exercise of review in the cadre strength from year to year, thereafter, becomes necessary because while on the one side the financial of the workmen who have served the State on difference projects has to be balanced. Concern is also to be shown for those who have worked for a number of years and have become ineligible for any other employment anywhere, be that the private sector or the public sector. Therefore, a balance has to be struck between the two competing 6 interests and that can be struck by a periodical revision of the cadre strength from year to year. We must also impress on the State Government that if work-charged employees have been on the establishment for long periods, the State should be liberal in the matter of revision of the cadre strength so that the benefit of regularization is available to a reasonably good number of work-charged employees who have been associated with the State Departments for long periods. We would, therefore, direct that clause ‘D’ should be understood as taking into its fold a periodical year-to- year revision of the cadre strength and besides the estimated vacancies, the additional vacancies on account of the increase in the cadre strength should become available for regularization. If the figures given in para 6-A perused, it appears that 25 per cent were engaged on work-charged establishment between 1960-65, 50 per cent between 1965-70, 20 per cent between 1960-65, 20 per cent between 1975-80 and 5 per cent between 1980-85. This would show that there are workmen on the work-charged establishment who had joined between 1960-65 and who, we believe, if continuing in service, would certainly be required by the departments concerned and could be considered for regularization under the Scheme by an increase in the cadre strength. So also one can say that the workmen working between 1965-75, if still in employment, could be considered for the State has to keep in view that financial constraints and the need for allocation of finances for development of projects, it should also show that at the end when they are relieved from service on their attaining the age of superannuation, 7 they may have something to fall back on. Keeping this in mind, we think that a liberal increase in the workforce for the first few years would satisfy the large number of work-charged employees who are working on different projects of each department for a number of years. 2. That takes us to the question regarding the regularization of muster-roll employees. Because they can only stand next to work-charged employees, we would recommend that they could be absorbed as work- charged employees to the extent or at a certain percentage of posts falling vacant on the letter being regularized under the Scheme. That would satisfy a certain percentage of the category of daily- wage/muster-roll employees also. We would like the State to undertake a review of the cadre strength by support to the cadre. With these observations and recommendations, we approve the Scheme but we would once again impress upon the State that the spirit of our observations in Piara Singh case should be observed. The petitions shall stand disposed of accordingly.” 6. The respondents vide orders dated 14.01.2002 and 05.01.2002 (Annexures No. 8 and 10 to the writ petition) directed not to regularize the service of Work Charge employees and therefore, the process of regularization has been stopped. 7. A counter affidavit has been filed in this case, in which it was mentioned that due to unavailability of number of posts, the regularization could not be made. However, by the interim order, this Hon’ble Court was pleased to stay the operation of the impugned order. 8 8. The petitioner has contended that after passing of the impugned orders, junior to the petitioners have been regularized while the petitioners and other senior persons are still left, although there are sufficient vacancies. According to the petitioner, they are working on the post since a considerable long time itself shows that the work and post is available. 9. Looking to the circumstances of the case and keeping in view the judgment of the Apex Court in Raj Narayan Prasad and Others Vs. State of U.P. and others (1998) 8 SCC 473 and Government Order dated 07.02.1997, liberty is given to the petitioners to make a fresh representation to the respondents within a period of 15 days stating his grievances from the date of production of the certified copy of this order. 10. If such a representation is filed, the respondents are directed to pass a reasoned and speaking order in the light of the judgment passed in Raj Narayn Prasadn and others Vs. State of U.P. and others (supra) and Government Order dated 07.02.1997 within a period of one month after the receipt of the certified copy of the order. Meanwhile, the order dated 14.01.2002 (Annexure No.10) and 05.01.2002 shall remain in abeyance and that shall be subject to final result passed in the writ petition. However, if junior to the petitioners have been regularized and other seniors are left, the respondent will give due weight with regard to the regularization of the petitioners on the same footing on which benefits of regularization were given to juniors. 11. Writ petition is disposed of. No order as to costs. (Rajesh Tandon, J.) 30.03.2006 Rathour