VIVEK CHAUDHARY,J. - (1.) The present writ petition has been filed by petitioner challenging the order dated 26.10.2002 passed by Divisional Forest Officer, Shravasti and for a writ of Mandamus directing opposite party no. 2 to consider and regularize the services of petitioner ignoring the artificial break of short period. By impugned order dated 26.10.2002 representation of petitioner for regularization has been rejected on the ground that while working as a daily wager there was a gap of 32 months and hence, he was not entitled for regularization under Regularization Rules of 2001.
(2.) Case of petitioner is that he was appointed as a Daily Wage employee on Class IV post in the year 1977 with Forest Department and he continues to be working till filing of writ petition and even thereafter. In para5 of writ petition has given details of his working on the said post: "January 1992 to May 1992 worked at Charda Range. June, 1992 to February 1993 worked at Chakiya Range. March 1993 worked at Chakiya Range, but certificate was issued. For verification Cash Book may be called. April, 1993 to July, 1993 work was allowed by the department (four months). August, 1993 to January 15, 1994 worked at Kakardari Range. January 16, 1994 to 22nd August, 1994 worked at Bhinga Range. 23rd August, 1994 to 30.6.95 at Abdullaganj Range (Charda Range). July, 95 to August 95 work was allowed for a period of two months by the employer. September, 1995 to December, 1995 worked at Bhinga Range. January, 1996 to May, 1997 worked at Bhinga Range. June, July and August work was allowed for three months. September, 1997 to October, 2000 worked at Kakardari Range. November, 2000 worked at Bhinga Range. December, 2000 Head Office Shrawasti. January, 2001 worked at Bhinga Range. February, 2001 Head Office Shrawasti and after that he is working at the Barrieer as Gateman." Thus it is shown that from January 1992 to February 2001 there were short breaks totalling 9 months which were on part of employer and on part of petitioner.
(3.) For his regularization petitioner filed writ petition no. 5050 (S/S) of 2002 which was disposed of by order dated 13.09.2002 directing respondent no. 2 to decide the representation of petitioner. In compliance of said order of High Court, representation of petitioner has been considered and rejected on ground of there being break in his work. Petitioner claims that impugned order has been wrongly passed and the same is contrary to the Regularization Rules. He relies upon Rule 4 of U.P. Regularisation of daily wages appointments on Group 'D' posts Rules 2001 (hereinafter referred to as 'Rules 2001'). Said Rule 4 reads as follows: "4. Regularisation of daily wages appointments on Group 'D' posts.-(1) Any person who - (a) was directly appointed on daily wage basis on a Group 'D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and (b) possessed requisite qualification prescribed for regular appointment for 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 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 order. (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 Services (Reservation for Schedule Caste, Schedule Tribes and Other Backward Classes) Act, 1994 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 regularisation under these rules. (3) For the purpose of sub rule (1) the Appointing Authority shall constitute a Selection Committee in accordance with the relevant provisions of the service rules. (4) The Appointing Authority shall, having regard to the provisions of sub rule (1), prepare an eligibility list of the candidates, arrange in order of seniority as determined from the date of order of Appointment on daily wage basis and if two or more persons are 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 record 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 of seniority, and forward the same to the Appointing Authority.";