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. 103 (SS) of 2004 Madho Singh S/o Sri Govind Singh vs. State of Uttaranchal and others Approved for reporting. _______________________ Date of decision: 08.06.2004 Initial of Judge 1 HIGH COURT OF UTTARANCHAL AT NAINITAL Writ petition No. 103 (S/S) of 2004 Madho Singh S/o Sri Govind Singh R/o Kalkhobia P.O. Kinath Talla District Pauri Garhwal. ….Petitioner Vs State of Uttaranchal and Others. ….Respondents Counsel for the petitioner Sh. P.C. Jhingan Standing Counsel for the respondent. Dated:-08.06.2004 Hon’ble Rajesh Tandon, J. Heard Sri P.C. Jhingan learned counsel for the petitioner and Standing counsel for the respondent. By the present writ petition the petitioner has prayed for the issue of a writ, order or direction in the nature of mandamus commanding the respondents to regularize and appoint the petitioner on the post of “Forest Guard” in the Forest Department retrospectively from 11-8-2003. Brief facts giving rise to the present writ petition are that the petitioner was engaged on daily wage basis as un-skilled Labour in the Garhwal Forest Division in the year 1985. The petitioner is continuously working in the department since the date of his initial engagement i.e from 1985 to 1988. He has further stated that there was a gap of 6 months break in his service due to scarcity of funds, this break of service was not due to his fault but has kept out of service3 for 6 months. 2 The petitioner has submitted that he was again re- engaged as ‘Beat Watcher’ on daily wage basis after six months break in his service and since then he had continuously worked up to the year of 1993. Thereafter he was again removed from the service in August 1993 and again re-engaged in July 1997 as ‘Beat Watcher’ on daily wage basis since then he has been working continuously without any break in service. According to the petitioner he has passed Matriculation from the U.P. Board in the year 1978 and has fully qualified for a state service. The petitioner has relied upon the regularization on Group ‘D’ post of Daily Wage Appointment Rules, 2003. According to the petitioner the cut of date has been shown before June 29, 1991. The petitioner has referred the judgment of Gurpreet Singh Vs. State of Punjab and others 2002 (9) SCC 492 where the apex court has held as under:- “Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuing of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, bit it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside that part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a 3 considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above.” The petitioner has also referred the petition passed by the dk;kZy; oulaj{kd @{ks=h; funs”kdlkef;d okfudh m0iz0 bykgkckn on 11.2.2003 in which it has been mentioned that the break will not be hurdle in the regularization of the petitioner. The Govt. order to that effect is quoted below:- vr% nSfud osru dfeZ;ksa ds fofu;fefrdj.k ds laca/k esa ik=rk fu/kkZfjr djrs le; ,sls Jfedksa dks ftudks lsok esa czsd gksus ds Ik”pkr~ fu;ekoyh ykxw gksus ls iwoZ iqu% dk;Z ij j[k fy;k x;k gks mUgsa lh/ksa&lh/ksa vik= ekuuk mfpr u gksxk ,oa bl laca/k esa ekuuh; mPp U;k;ky; }kjk fn;s x;s vkns’k o yscj ,DV esa lsok esa O;o/kku lEcU/kh izkfo/kkuksa dk voyksdu dj fy;k x;k ,oa blh vk/kkj ij fu.kZ; fy;k tk;sA Rules 4 of the U.P. Regularization on Group ‘D’ post of daily wages provides as under:- “4. Regulation of daily wages appointments on Group “D” posts: (i) Any person who:- (a) was directly appointed on daily wages basis on a Group “D” post in the Forest Department under Government service before June 29, 1991 and in continuing in service as such on the date of commencement of these rules; and (b) possessed requisite qualification prescribed for regular appointment for 4 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 the Forest Department 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. (2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act (Uttaranchal Adaptation and Modification) order 2001, and the Uttar Pradesh Public Services (Reservation for physically Handicapped, Dependents of freedom fighters and Ex-Servicemen Act, 1993 as amended from time to time and the orders of the Government in force at the time of regularization under these rules, and Note:- In this connection the provision of reservation shall be fixed vide Uttaranchal Govt. Karmik Department Dehradun letter no. 1144/Karmik-2-2001/53(1)/2001, dated 18.7.2001 5 and 1415/Karmik-2/2001, dated 30.8.2001 for the state of Uttaranchal. (3) For the purpose of sub-rule (1) the Principal Chief Conservator of Forests (PCCF) shall constitute a State Level Selection Committee. (4) The appointing authority shall, having regard, to the provision of sub-rule (1), forward complete details of the vacancies of Group “D” Posts and list of the persons working on daily wages, along with complete relevant information/records, with regard to Division/Circle/Office under his control, to the Chief Conservator of Forests (Administration) who shall prepare an eligibility list of the candidates, arranged in order to seniority as determined from the date of order of appointment on daily wage basis and if two or more persons were appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with such relevant records pertaining to the candidates, as may be considered necessary, to assess their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4), and if it considers necessary, it may interview the candidates also. (6) The Selection Committee shall prepare a list of selected candidates in order to seniority, and forward the same to the Chief Conservator of 6 Forest (Administration). The Chief conservator of Forest (Administration), keeping in view the position/number of the vacancies of Group “D” posts in different Divisions / Circles / Officers and subject to the sub-rules (2) of Rule 4, forward the names of selected candidates, in the order in which their names stand in the list to the appointing authority concerned. The main criteria on which the U.P. regularization on Group ‘D’ post of Daily Wage Appointment Rules, 2003 was introduced to regularize the employees of daily wages on Group ‘D’ Posts in the various department working before June 29,1991 and are continuing in service. According to the petitioner he was working since 1985 and he is continuing in service till passing of the regularization Act and therefore he is entitled for regularization. The writ petition therefore is disposed of with the direction that the respondents shall consider the regularization in terms of the Uttaranchal Forest Department Regularization (On Group “D” Posts) of daily Wages Appointment Rules, 2003. Subject to the aforesaid observations, the writ petition is disposed of. There will be no order as to costs. (RAJESH TANDON, J.) Dated:- 08.6.2004 M.K.