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Judgment
Hon'Ble Irshad Ali, J.
Heard Ms. Bulbul Godiyal, learned Senior Counsel assisted by Sri Ram Raj Ojha, learned counsel for the petitioner and learned Standing Counsel for the respondent - State.
By means of present writ petition, the petitioner has prayed for quashing the order dated 07.11.2014 passed by respondent No.2 contained as Anneuxre-1 to the writ petition with a further prayer to issue writ of mandamus commanding the respondent No.2 to allow the petitioner all service benefits given to juniors namely Irfan Mohammad Siddiqui and Satya Narayan Gupta.
Factual matrix of the case is that the petitioner was initially appointed as a Junior Clerk on daily-wage basis on 20.04.1992 by respondent No.2. He continuously discharged his duties under the control and supervision of the respondent authorities and his work and conduct remained satisfactory. However, without assigning any reason, the petitioner was orally terminated from service by respondent No.2 in August, 1992. Aggrieved by the said oral termination, the petitioner instituted Writ Petition No.6940 (S/S) of 1992 before this Hon'ble Court. The said writ petition was allowed vide judgment and order dated 14.07.1995, whereby respondent No.2 was directed to permit the petitioner to continue to work as a Clerk on daily-wage basis, subject to the condition that persons junior to the petitioner were still working.
In compliance with the judgment and order dated 14.07.1995, the petitioner was permitted to resume and continue his duties as a daily-wage Clerk at the Government Ayurvedic and Unani Analysis Laboratory. Subsequently, vide order dated 07.02.2005, the petitioner was permitted to work at the Directorate on the post of Clerk on daily-wage basis.
The petitioner, thereafter, requested the respondent authorities for his absorption in service and for payment of the minimum of the regular pay scale, particularly as similar benefits were being extended to his juniors, namely, Satya Narayan Gupta, who had initially been engaged as a daily wager on 27.05.1992 and Irfan Mohammad Siddiqui, who had initially been engaged as a daily wager on 31.05.1992. Irfan Mohammad Siddiqui was absorbed by respondent No.2 vide order dated 05.03.2005. However, subsequently, the then respondent No.2 cancelled the petitioner's engagement vide order dated 05.12.2007. Aggrieved thereby, the petitioner filed Writ Petition No.966 (S/S) of 2008, in which this Hon'ble Court, vide interim order dated 21.02.2008, stayed the operation of the order dated 05.12.2007.
Pursuant to the interim protection granted by this Hon'ble Court, the petitioner resumed his duties. Thereafter, the State Government, vide letter dated 02.06.2009, directed respondent No.2 to extend the minimum pay scale applicable to the post of Junior Clerk to the petitioner forthwith. In compliance thereof, respondent No.2 passed order dated 18.01.2011 granting the petitioner the minimum pay scale with effect from 07.02.2005.
The petitioner subsequently came to know that respondent No.2 was attempting to absorb daily-wage employees Junior to the petitioner by adopting a pick-and-choose method. Aggrieved by the proposed arbitrary action, the petitioner filed Writ Petition No.2602 (S/S) of 2010 seeking a direction to the respondents to absorb him against a substantive vacancy on the post of Junior Clerk. This Hon'ble Court, vide interim order dated 03.05.2010, directed that no action be taken by the respondents unless and until a seniority list of the daily-wage employees was prepared.
During the aforesaid period, Satya Narayan Gupta, who had initially been engaged as a daily wager on 27.05.1992 and was thus junior to the petitioner, was absorbed by the respondent authorities vide order dated 01.11.2012. Satya Narayan Gupta had been working at Rajkiya Takmil Tibbi College and was subsequently transferred to Government Ayurvedic College vide order dated 28.02.2011. Both the said institutions were under the control of the Director, Ayurvedic Services and were governed by the U.P. Ayurvedic and Unani Department Ministerial Cadre Service Rules, 1991. Thereafter, the State Government, vide letter dated 03.06.2013, directed respondent No.2 to absorb Satya Narayan Gupta from the date of availability of the vacancy, i.e. 03.04.1997. In pursuance thereof, respondent No.2 issued a formal order dated 17.06.2013, whereby Satya Narayan Gupta was absorbed with effect from 03.04.1997 along with the consequential benefits, including pay-scale benefits.
The petitioner also placed on record the relevant orders and documents concerning the interim order dated 03.05.2010 passed in Writ Petition No.2602 (S/S) of 2010, the absorption order dated 01.11.2012 of Satya Narayan Gupta, his transfer order dated 28.02.2011, the applicable Service Rules, the Government letter dated 03.06.2013 and the formal absorption order dated 17.06.2013 as Annexures No. 8 to 13 to the writ petition.
Likewise, Irfan Mohammad Siddiqui, who was also junior to the petitioner and had initially been engaged as a daily wager on 31.05.1992, was absorbed by the respondent authorities vide order dated 29.06.2012 with retrospective effect from 03.04.1997. In view of the absorption of his juniors, the petitioner submitted a representation dated 18.01.2013 before the State Government, pointing out that his juniors were being absorbed against substantive vacancies in an arbitrary and discriminatory manner. The petitioner requested that he and other similarly situated daily-wage employees also be absorbed against the available substantive vacancies. Upon receipt of the representation, the State Government called for a report from respondent No.2 vide its letters dated 06.03.2013 and 15.07.2013.
Thereafter, respondent No.2 issued letter dated 05.09.2013 calling for the current status and particulars of daily-wage employees from the Principal, Government Ayurvedic College, Lucknow and the Regional Ayurvedic and Unani Officers. In response, the particulars of the petitioner and other similarly situated employees were furnished by the competent/supervising authorities. The matter was thereafter placed before the duly constituted Absorption Committee, which considered the cases of the concerned employees in the first week of January, 2014. On the recommendation of the Committee, respondent No.2, being the appointing authority, passed the absorption order dated 10.01.2014, whereby the petitioner, namely Shri Dhirendra Singh, was adjusted against a vacant post of Junior Assistant in the pay scale of Rs.5200-20200 with Grade Pay of Rs.2000 at Government Ayurvedic and Unani Medicine Manufacturing Unit, Lucknow, with immediate effect.
The relevant absorption order dated 10.01.2014 recorded that the petitioner was being adjusted against the vacant post of Junior Assistant on the basis of the recommendation of the Committee constituted for regularization/absorption of clerical employees working on fixed remuneration. The said order was issued by the Director, Ayurvedic Services, Uttar Pradesh, Lucknow.
Subsequently, under the Right to Information Act, an application dated 07.03.2014 was submitted by Sri Jitendra Kumar Jha, Junior Clerk, seeking information regarding the sanctioned substantive posts of Senior Assistant and Junior Assistant/Junior Clerk. In response, the Public Information Officer, vide letter dated 12.05.2014, informed that there were 62 substantive posts of Senior Assistant, out of which 26 posts were vacant and 258 substantive posts of Junior Clerk/Junior Assistant, out of which 24 posts were still vacant. Thus, the information obtained under the Right to Information Act demonstrated the availability of substantive vacancies in the cadre of Junior Clerk/Junior Assistant even after the petitioner's absorption.
The State Government, thereafter, promulgated fresh service rules governing the Ministerial Cadre vide notification dated 22.09.2014, namely, the U.P. Government Servant Department Ministerial Cadre Service Rules, 2014. The petitioner had initially been engaged as a Junior Clerk/Junior Assistant on daily-wage basis on 20.04.1992 and had continuously rendered satisfactory service. He was granted the minimum of the pay scale applicable to the post with effect from 07.02.2005. In the meantime, his juniors, namely, Irfan Mohammad Siddiqui, initially engaged on 31.05.1992 and Satya Narayan Gupta, initially engaged on 27.05.1992, had been absorbed by the respondents with retrospective effect from 03.04.1997 pursuant to the orders dated 29.06.2012 and 17.06.2013 respectively. The petitioner and other similarly situated employees thereafter approached the State Government seeking absorption. Upon consideration of their cases, the requisite particulars were obtained, an Absorption Committee was constituted and, on the recommendation of the Committee, the petitioner and other similarly situated employees were absorbed vide order dated 10.01.2014.
However, despite the petitioner's absorption having been made pursuant to the recommendation of the duly constituted Committee and against an available substantive vacancy and despite the information furnished under the Right to Information Act disclosing that 24 substantive posts of Junior Clerk/Junior Assistant were still vacant, the respondents, in an arbitrary and illegal manner, cancelled the petitioner's absorption order along with the absorption orders of other similarly situated employees vide order dated 07.11.2014. The said cancellation was effected without affording the petitioner any opportunity of hearing and in violation of the principles of natural justice.
The order dated 07.11.2014 was not an isolated action. Identical orders were passed against other similarly situated employees, wherein only the names of the employees and dispatch numbers were different. The affected employees, namely Manoj Kumar Dwivedi, Awadhesh Kumar Verma and Rajesh Kumar Srivastava, challenged the respective cancellation orders before this Hon'ble Court in Writ Petition Nos.7021 (S/S) of 2014, 6976 (S/S) of 2014 and 6955 (S/S) of 2014.
This Hon'ble Court, upon consideration of the cases of the aforesaid similarly situated employees, granted interim protection against the operation of the identical cancellation orders vide orders dated 04.12.2014, 03.12.2014 and 02.12.2014 respectively. In particular, in Writ Petition No.7021 (S/S) of 2014, Manoj Kumar Dwivedi Vs. State of U.P. and others, this Hon'ble Court, vide order dated 04.12.2014, noticed that the petitioner's services had earlier been adjusted against a vacant post of Junior Clerk and that the said adjustment order had subsequently been cancelled without affording any opportunity to the petitioner. Finding a prima facie case for interim relief, this Hon'ble Court stayed the operation and implementation of the impugned order dated 07.11.2014 until further orders.
The petitioner contends that his case stands on the same footing as that of the aforesaid similarly situated employees and that the cancellation of his absorption, without notice or opportunity of hearing, is arbitrary, discriminatory and contrary to the principles of natural justice. The petitioner accordingly seeks appropriate protection from this Hon'ble Court in view of the interim orders already granted in the cases of similarly situated employees.
Submission of learned Senior Counsel for the petitioner is that the order impugned has been passed without issuing notice to the petitioner and without affording opportunity of hearing, therefore, the order impugned suffer from vices of principles of natural justice. She further submitted that the order impugned has been passed without assigning reasons by arriving at conclusion that due to non fulfillment of absorption rules, the absorption has been cancelled but no provision whatsoever has been pointed out in regard to non applicability of absorption rules, therefore, her submission is that the order impugned is per se illegal and liable to be set aside by this Court.
Her next submission is that the order impugned suffers from apparent illegality and is not sustainable in law. She submitted that the petitioner was absorbed in service in accordance with provisions of absorption rules and other similarly situated junior candidates have also been absorbed, who were continuing on the post of Junior Clerk and deliberately the order of cancellation of absorption has been passed in the case of the petitioner.
She lastly submitted that violation of principles of natural justice has been explained in paragraph 13 of the writ petition and reply to the same has been given in paragraph 17 of the counter affidavit, wherein there is no denial of the facts narrated in paragraph 13 of the writ petition.
On the other hand, learned Standing Counsel submitted that the petitioner's case was not covered under absorption rules, therefore, his claim was cancelled on the ground of non fulfillment of prescribed provisions under absorption rules. He submitted that the impugned order does not suffer from any infirmity or illegality and is just and valid.
I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
On perusal of impugned order, which is annexure-1 to the writ petition, it is transpired that no reasons have been recorded in the impugned order that which provision of 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 has not been applied to the petitioner, therefore, the order impugned is unreasoned.
Reasons are heart beat of conclusion and in case no reasons have been recorded, the order suffers from apparent illegality and is liable to be set aside. In view of fact narrated in paragraph 13 of the writ petition, it is also apparent on the face of record that no notice nor opportunity of hearing was afforded to the petitioner prior to passing of impugned order dated 07.11.2014, therefore, the order being violative of principles of natural justice is liable to be set aside.
It is also relevant to point out that averment made in paragraph 13 of the writ petition in regard to violation of principles of natural justice has not been denied in paragraph 17 of the counter affidavit, therefore, the order impugned being violative of principles of natural jusitce is liable to be set aside.
In view of reasons recorded above, this Court is of the considered opinion that the order impugned dated 07.11.2014 being unreasoned and violative of principles of natural justice is not sustainable in law and is hereby set aside.
The writ petition succeeds and is allowed.
No order as to costs.