High Court · 2025

4. It has submitted by learned counsel for petitioner that it has always been the claim of the petitioner for regularization on completion of the necessary period of service under the Rules of 2001 but it was on account of the lapse on the part of the respondents that they never took up the case for regularization and it is accordingly after a long lapse of time, the services of the petitioner were regularized in 2018. It is in this regard that similarly situated person namely, Raj Bahadur Pastor, who retired on attaining the age of superannuation on 30.09.2020 and when the post retiral dues were not given to him, he preferred a writ petition being Writ-A No. 3660 of 2021 for seeking a direction to the respondents to pay him post retiral benefits and the same was disposed of by this Court with a direction to the respondents to consider his case for payment of pension. The State Government being aggrieved by the judgment of Hon'ble Single Judge dated 19.08.2021 filed a special appeal being Special Appeal No. 21 of 2022 before the Division Bench of this Court at Allahabad, which was disposed of by the judgment and order dated 27.01.2022 where this Court after looking into all the aspects of the matter including the rules pertaining to the claim of the government servant for regularization disposed of the writ petition and observing in paragraph no. 48 as follows:- "48. We are, therefore, of the view that the claim of respondent/petitioner to be regularized w.e.f. 20.12.2001 in light of the order of the writ court dated 21.2.1997 or in any event prior to regular appointment made in permanent or temporary vacancy in accordance with relevant service rules is liable to be considered by the Chief Engineer concerned in light of our above observations within a period of two months from the date of presentation of a copy of this order. The order of regularization dated 31.12.2018 shall stand amended in terms of the order to be passed by the Chief Engineer. The authorities shall be at liberty to determine the date on which regular appointment on the post in the cadre was made after 20.12.2001, since the benefit of regularization in any event will have to be extended from a date prior to such regular appointment. The appellants, therefore, are commanded to extend all service and retiral benefits, which are found due and payable to the respondent/petitioner within a further period of six weeks, thereafter. The instant special appeal, is therefore, disposed off in the above terms. Parties to bear their own costs."

5. The State of U.P. being aggrieved by the judgement and order dated 27.01.2022 passed by this Division Bench of this Court had filed a special leave petition before the Hon'ble Supreme Court, which was also being Special Leave to Appeal (C) No. 11915 of 2022, and the same was dismissed on 27.09.2023 after observing that all the question of law are kept open. A review petition was also preferred assailing the order of the Supreme Court, which was also dismissed on 10.01.2024. A further interference was sought by the State Government by filing a Curative Petition (Civil) No.85 of 2024, which was also rejected by the Supreme Court.

6. It is in the aforesaid circumstances that the respondents were called upon to consider the claim of the petitioner in light of the judgment of Division Bench of this Court in the case of State of U.P. and others Vs. Raj Bahadur Pastor. The claim of the petitioner was also that he was initially appointed on

18.10.1995 and subsequently his services were regularized on

31.12.2018 and had sought a direction to regularize his services from the initial date of appointment. The Division Bench of this Court in the case of State of U.P. and others Vs. Raj Bahadur Pastor (supra) had considered all the issues and all the objections raised by the State and was of the view that the petitioners therein was entitled to be regularized with effect from the date of initial appointment and he was granted regularization with effect from 20.12.2001.

7. When the petitioner had approached for the similar benefit, the respondents were directed to consider the case of the petitioner taking into consideration the judgment of State of U.P. and others Vs. Raj Bahadur Pastor (supra) and despite noticing the judgment in its correct perspective and also the fact that the review petition as well as curative petition has been rejected, still the respondents have chosen to deny the petitioner similar benefits as granted to Raj Bahadur Pastor by the Division Bench of this Court.

8. Surprisingly, in paragraph no. 16 of the impugned order dated 30.01.2025, it has also been stated that benefit giving to an employee of one department cannot be extended to another. Probably the respondents lost sight of the fact that Raj Bahadur Pastor was also an employee of the Minor Irrigation Department as that of the petitioner and specially to the same rules and regulations and there is no distinction either on facts or on law with regard to the applicability of the judgment in the case of State of U.P. and others Vs. Raj Bahadur Pastor (supra). There is no cogent reason forthcoming for rejection of the case of the petitioner distinguishing it from the case of the petitioner. It has also to be noted that services of Raj Bahadur Pastor were also regularized by the same order and the same date i.e., 31.12.2018 by which the services of the petitioner were regularized.

9. Learned Standing Counsel was also specifically asked to indicate as to whether the case of the petitioner would be distinguishable either on facts or law but after perusal of the impugned order, no such point of distinction could be pointed out.

10. The relevant paragraphs of the case of State of U.P. and others Vs. Raj Bahadur Pastor (supra) passed in Special Appeal No. 21 of 2022, reads as under:- "7. The direction of the Tribunal was challenged by State by filing a writ petition before the Lucknow Bench of this Court being writ petition (SB) No. 1506 of 2015. A Division Bench of this Court disposed off the writ petition filed by the State in following terms vide order dated 30th November, 2017:- "After hearing learned counsel for the parties and having gone through the record, we are of the considered view that the finding, which has been given by the Tribunal that Admittedly, the petitioners qualify for regularization in accordance with the Rules, 2001, is not correct because that leaves no room for the petitioners/respondents to exercise their discretion in considering the case of the respondents/claimants for regularization as per Rules 2001. At this stage, after arguing at some length, it is amicably settled between the parties that the present writ petitions may be disposed of with direction that the petitioners/Officer respondents may consider the case of Shashi Kant Singh, Shiv Mohan Richhariya and Raj Bahadur Pastor in accordance with Rules 2001. Accordingly, in view of the above said fact, both the writ petitions are disposed of with direction that the Competent Authority shall consider the case of Shashi Kant Singh, Shiv Mohan Richhariya and Raj Bahadur Pastor for regularization on the post of junior engineer in the Minor Irrigation Department, as per Rules 2001, after giving opportunity of hearing to them."

42. The fact that claim of respondent/petitioner for regularization under the notification dated 20.12.2001 was covered is neither in doubt nor is disputed in view of the order dated 31.12.2018 since his initial engagement on adhoc basis was from a date prior to 30.6.1998; he was working on 20.12.2001; he possessed requisite qualification for regular appointment at the time of initial adhoc appointment and had completed three years continuous service.

43. The notification dated 20.12.2001 was expected to be given effect to with immediate effect and the consideration of claim for regularization of respondent/petitioner ought not to have been deferred for so long particularly in view of the express provision contained in the rule itself. Rule 2(iii) of the amended rules notified on 20.12.2001 also indicates the specific intent by the rule framing authority for such consideration to be made before any regular appointment is made in accordance with the service rules. The language employed in rule 2(iii) is relevant and is reproduced hereinafter:- "2(iii). Any person who - has completed or, as the case may be, after he has completed three years continuous 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 service rules or orders."

44. The fact that the above rule requires consideration for regularization against permanent or temporary vacancy, before any regular appointment is made in accordance with relevant service rule is of importance and cannot be ignored. The rule making authority was conscious that non consideration of claim for regularization notwithstanding the existence of rule for such purpose may adversely affect the adhoc employee, in the matter of determination of seniority etc. and, therefore, made a specific provision for such regularization under the rules to be considered prior to any regular appointment made in such vacancy in accordance with the relevant service rules. Denial of timely consideration in accordance with the rules for regularization may otherwise deny service and retiral benefits to adhoc employees only because of administrative lethargy on part of the department concerned in processing such claim.

45. No valid reasons have otherwise been disclosed for non consideration of claim of respondent/petitioner for regularization after 20.12.2001, particularly when the order dated 21.2.1997 already existed of this Court for regularizing his services. The only plea taken in the counter affidavit to justify belated consideration for regularization is that the State Government directed such claim to be considered only vide order 7.9.2018. This plea of the appellant to explain the delay in consideration of claim for regularization is noticed only to be rejected."

11. In light of the above, this Court finds himself bound by the judgment of the Division Bench of this Court in the case of State of U.P. and others Vs. Raj Bahadur Pastor (supra) and specially noticing that the said judgement has been upheld by the Hon'ble Supreme Court and is a binding not only to be followed by this Court but also on the authority as well.

12. In light of the discussion made above, this writ petition is allowed. Impugned orders dated 30.01.2025 is quashed. The respondents are directed to regularize the petitioner in service w.e.f. 01.01.2002 and grant him all consequential benefits. . Order Date :- 4.3.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

4. It has submitted by learned counsel for petitioner that it has always been the claim of the petitioner for regularization on completion of the necessary period of service under the Rules of 2001 but it was on account of the lapse on the part of the respondents that they never took up the case for regularization and it is accordingly after a long lapse of time, the services of the petitioner were regularized in 2018. It is in this regard that similarly situated person namely, Raj Bahadur Pastor, who retired on attaining the age of superannuation on 30.09.2020 and when the post retiral dues were not given to him, he preferred a writ petition being Writ-A No. 3660 of 2021 for seeking a direction to the respondents to pay him post retiral benefits and the same was disposed of by this Court with a direction to the respondents to consider his case for payment of pension. The State Government being aggrieved by the judgment of Hon'ble Single Judge dated 19.08.2021 filed a special appeal being Special Appeal No. 21 of 2022 before the Division Bench of this Court at Allahabad, which was disposed of by the judgment and order dated 27.01.2022 where this Court after looking into all the aspects of the matter including the rules pertaining to the claim of the government servant for regularization disposed of the writ petition and observing in paragraph no. 48 as follows:- "48. We are, therefore, of the view that the claim of respondent/petitioner to be regularized w.e.f. 20.12.2001 in light of the order of the writ court dated 21.2.1997 or in any event prior to regular appointment made in permanent or temporary vacancy in accordance with relevant service rules is liable to be considered by the Chief Engineer concerned in light of our above observations within a period of two months from the date of presentation of a copy of this order. The order of regularization dated 31.12.2018 shall stand amended in terms of the order to be passed by the Chief Engineer. The authorities shall be at liberty to determine the date on which regular appointment on the post in the cadre was made after 20.12.2001, since the benefit of regularization in any event will have to be extended from a date prior to such regular appointment. The appellants, therefore, are commanded to extend all service and retiral benefits, which are found due and payable to the respondent/petitioner within a further period of six weeks, thereafter. The instant special appeal, is therefore, disposed off in the above terms. Parties to bear their own costs."

5. The State of U.P. being aggrieved by the judgement and order dated 27.01.2022 passed by this Division Bench of this Court had filed a special leave petition before the Hon'ble Supreme Court, which was also being Special Leave to Appeal (C) No. 11915 of 2022, and the same was dismissed on 27.09.2023 after observing that all the question of law are kept open. A review petition was also preferred assailing the order of the Supreme Court, which was also dismissed on 10.01.2024. A further interference was sought by the State Government by filing a Curative Petition (Civil) No.85 of 2024, which was also rejected by the Supreme Court.

6. It is in the aforesaid circumstances that the respondents were called upon to consider the claim of the petitioner in light of the judgment of Division Bench of this Court in the case of State of U.P. and others Vs. Raj Bahadur Pastor. The claim of the petitioner was also that he was initially appointed on

18.10.1995 and subsequently his services were regularized on

31.12.2018 and had sought a direction to regularize his services from the initial date of appointment. The Division Bench of this Court in the case of State of U.P. and others Vs. Raj Bahadur Pastor (supra) had considered all the issues and all the objections raised by the State and was of the view that the petitioners therein was entitled to be regularized with effect from the date of initial appointment and he was granted regularization with effect from 20.12.2001.

7. When the petitioner had approached for the similar benefit, the respondents were directed to consider the case of the petitioner taking into consideration the judgment of State of U.P. and others Vs. Raj Bahadur Pastor (supra) and despite noticing the judgment in its correct perspective and also the fact that the review petition as well as curative petition has been rejected, still the respondents have chosen to deny the petitioner similar benefits as granted to Raj Bahadur Pastor by the Division Bench of this Court.

8. Surprisingly, in paragraph no. 16 of the impugned order dated 30.01.2025, it has also been stated that benefit giving to an employee of one department cannot be extended to another. Probably the respondents lost sight of the fact that Raj Bahadur Pastor was also an employee of the Minor Irrigation Department as that of the petitioner and specially to the same rules and regulations and there is no distinction either on facts or on law with regard to the applicability of the judgment in the case of State of U.P. and others Vs. Raj Bahadur Pastor (supra). There is no cogent reason forthcoming for rejection of the case of the petitioner distinguishing it from the case of the petitioner. It has also to be noted that services of Raj Bahadur Pastor were also regularized by the same order and the same date i.e., 31.12.2018 by which the services of the petitioner were regularized.

9. Learned Standing Counsel was also specifically asked to indicate as to whether the case of the petitioner would be distinguishable either on facts or law but after perusal of the impugned order, no such point of distinction could be pointed out.

10. The relevant paragraphs of the case of State of U.P. and others Vs. Raj Bahadur Pastor (supra) passed in Special Appeal No. 21 of 2022, reads as under:- "7. The direction of the Tribunal was challenged by State by filing a writ petition before the Lucknow Bench of this Court being writ petition (SB) No. 1506 of 2015. A Division Bench of this Court disposed off the writ petition filed by the State in following terms vide order dated 30th November, 2017:- "After hearing learned counsel for the parties and having gone through the record, we are of the considered view that the finding, which has been given by the Tribunal that Admittedly, the petitioners qualify for regularization in accordance with the Rules, 2001, is not correct because that leaves no room for the petitioners/respondents to exercise their discretion in considering the case of the respondents/claimants for regularization as per Rules 2001. At this stage, after arguing at some length, it is amicably settled between the parties that the present writ petitions may be disposed of with direction that the petitioners/Officer respondents may consider the case of Shashi Kant Singh, Shiv Mohan Richhariya and Raj Bahadur Pastor in accordance with Rules 2001. Accordingly, in view of the above said fact, both the writ petitions are disposed of with direction that the Competent Authority shall consider the case of Shashi Kant Singh, Shiv Mohan Richhariya and Raj Bahadur Pastor for regularization on the post of junior engineer in the Minor Irrigation Department, as per Rules 2001, after giving opportunity of hearing to them."

42. The fact that claim of respondent/petitioner for regularization under the notification dated 20.12.2001 was covered is neither in doubt nor is disputed in view of the order dated 31.12.2018 since his initial engagement on adhoc basis was from a date prior to 30.6.1998; he was working on 20.12.2001; he possessed requisite qualification for regular appointment at the time of initial adhoc appointment and had completed three years continuous service.

43. The notification dated 20.12.2001 was expected to be given effect to with immediate effect and the consideration of claim for regularization of respondent/petitioner ought not to have been deferred for so long particularly in view of the express provision contained in the rule itself. Rule 2(iii) of the amended rules notified on 20.12.2001 also indicates the specific intent by the rule framing authority for such consideration to be made before any regular appointment is made in accordance with the service rules. The language employed in rule 2(iii) is relevant and is reproduced hereinafter:- "2(iii). Any person who - has completed or, as the case may be, after he has completed three years continuous 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 service rules or orders."

44. The fact that the above rule requires consideration for regularization against permanent or temporary vacancy, before any regular appointment is made in accordance with relevant service rule is of importance and cannot be ignored. The rule making authority was conscious that non consideration of claim for regularization notwithstanding the existence of rule for such purpose may adversely affect the adhoc employee, in the matter of determination of seniority etc. and, therefore, made a specific provision for such regularization under the rules to be considered prior to any regular appointment made in such vacancy in accordance with the relevant service rules. Denial of timely consideration in accordance with the rules for regularization may otherwise deny service and retiral benefits to adhoc employees only because of administrative lethargy on part of the department concerned in processing such claim.

45. No valid reasons have otherwise been disclosed for non consideration of claim of respondent/petitioner for regularization after 20.12.2001, particularly when the order dated 21.2.1997 already existed of this Court for regularizing his services. The only plea taken in the counter affidavit to justify belated consideration for regularization is that the State Government directed such claim to be considered only vide order 7.9.2018. This plea of the appellant to explain the delay in consideration of claim for regularization is noticed only to be rejected."

11. In light of the above, this Court finds himself bound by the judgment of the Division Bench of this Court in the case of State of U.P. and others Vs. Raj Bahadur Pastor (supra) and specially noticing that the said judgement has been upheld by the Hon'ble Supreme Court and is a binding not only to be followed by this Court but also on the authority as well.

12. In light of the discussion made above, this writ petition is allowed. Impugned orders dated 30.01.2025 is quashed. The respondents are directed to regularize the petitioner in service w.e.f. 01.01.2002 and grant him all consequential benefits. . Order Date :- 4.3.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench