- (1.) SUDHIR Agarwal, J. Heard Sri Vinod Kumar Dwivedi for the petitioner, learned Standing Counsel for the respondents and perused the record.
(2.) THE petitioner has sought a writ of mandamus commanding the respondents to regularize him on the post of Chowkidar in the department and pay minimum pay scale along with other allowances which are being paid to the regularly appointed Chowkidars of the department until regularization of the petitioner is made. The facts in brief as stated in the writ petition are that the petitioner was engaged as a daily wage Chowkidar on 1. 9. 1985 and is continuously discharging his duties since then. He was appointed in work-charge establishment as Chowkidar on the basis of monthly salary vide order dated 10. 9. 2001 w. e. f. 24. 8. 2001 and is discharging his duties accordingly. In exercise of power under proviso to Article 309 of the Constitution, the State Government has framed U. P. Regularization of Daily Wages Appointments on Group 'd' Posts Rules, 2001 (hereinafter referred to as "2001 Rules") published in the Gazette dated 21st December, 2001 which provides for regularization of such daily wage employees in Group 'd' posts who were appointed 29th June 1991 and are continuing in service on the date of commencement of said Rules. Since, the petitioner was appointed prior to 29th June 1991 and was continuing in service on 21st December, 2001, he claims that he is entitled for regularization under the said Rules. 4. Respondents have filed counter affidavit stating that the petitioner was engaged as daily wage employee against the requirement for completion of work as and when various schemes and projects were undertaken by Public Work Department but he was never engaged against any sanctioned post in the department. Initially, he was engaged on daily wage basis and, thereafter, in Work-Charge Establishment since there was requirement of Chowkidar, he was engaged on monthly salary with effect from 24th August, 2001 but his engagement has never been in any regular establishment against any sanctioned post. It is further submitted that under 2001 Rules, the department has prepared a seniority list of all daily wage employees on the basis of their length of service and against the existing vacancies as per Rules have been they will be considered for regularization. Since, the petitioner is lower in the seniority, he could not have been regularized and it is not possible to regularize the petitioner over and above the persons, who are senior to him in the seniority list of daily wage employees similarly engaged as the petitioner.
(3.) LEARNED Counsel for the petitioner drew the attention of this Court to para- 14 of the rejoinder affidavit and stated that as a result of several retirements of class 4th1 employees, there are 15 posts of Chowkidar lying vacant and, therefore, the petitioner is entitled for regularization against these vacancies under 2001 Rules. He also placed reliance on a Single Judge judgment of this Court in Writ Petition No. 59535 of 2005, Jawaharlal v. State of U. P. and others, decided on 1. 11. 2006 wherein a direction has been issued to the respondents to consider the candidature of the petitioner and other similarly situated candidates under 2001 Rules as and when the vacancies arise in future. Per contra, learned Standing Counsel submitted that 2001 Rules do not permit consideration of candidature of any person for regularization against the vacancies, which may be available in future inasmuch a perusal of the said Rules would make clear that it is one time arrangement made by the Rule framing authority in respect to such daily wage employees, who have rendered about 10 years of service and the said right was limited against the vacancies, permanent or temporary, as were available on the date of commencement of the said Rules and not for future vacancies.;