Dr. Jaipal vs State of Uttarakhand and Others

Barin Ghosh, C.J.—On 4.11.1991, Respondent No. 4 was a Postgraduate in Mathematics. But he did not secure 50 per cent marks at post graduation. As appears from the letter dated 26.2.1992, relied by the parties, Respondent No. 4 started discharging duties of a Lecturer in a college since 4.11.1991 on ad hoc basis. It appears that on 22.11.1991, a ban was imposed on appointment of any Lecturer in the affiliated Government Aided Colleges as that of the college where he was an adhocee. The ban was initially imposed by promulgation of an Ordinance, which was converted into a Statute later on. Subsequent thereto, the Statute was amended, when it was decided that a Committee will be constituted by the Government for the purpose of scrutinizing cases of various people, who had been appointed on ad hoc basis in different affiliated Government Aided Colleges before 22.11.1991. By that time, Respondent No. 4 had obtained a Doctorate in Mathematics.

In terms of the mandate, contained in the Statute, a Committee was constituted. That Committee, while considering the cases of many a people thus appointed on ad hoc basis prior to 22.11.1991, also considered the case of the Respondent No. 4. The report of the Committee containing a recommendation in favour of giving substantive appointment to the Respondent No. 4 was considered and accepted by the Government, whereupon the Government, through the Director of School Education, asked the college by a letter dated 6.3.1998 to issue a formal letter to the Respondent No. 4 indicating that he has been regularized as a Lecturer of the college. It appears that the college did not issue a formal letter to Respondent No. 4 indicating that he has been regularized. It appears that in the meantime or subsequent thereto, ban on appointment was lifted and, accordingly, steps were taken to appoint Lecturers in different colleges by selection through the Public Service Commission. Petitioner, on being thus selected, was recommended for being appointed in the college, where the Respondent No. 4 was also working. On 27.12.1999, the Petitioner was appointed in the selfsame college. Subsequent thereto, the State of Uttarakhand was created, whereupon the State of Uttarakhand made one more exercise of considering cases of regularization of ad hoc Lecturers of similar colleges situated within the territory of the State of Uttarakhand through a Committee. The Committee, thus constituted by the State of Uttarakhand, on 22.08.2003, held in favour of regularization of the Respondent No. 4 and appropriate recommendation to that effect was sent to the Government, which having been accepted, was communicated to the college, but still then the college did not issue any formal letter indicating that the Respondent No. 4 has been regularized. Subsequent thereto, it appears that a seniority list was prepared by the college, where it was shown that the Petitioner is senior to the Respondent No. 4. Although the college did not issue a formal letter acknowledging that the Respondent No. 4 has become its permanent employee, but by making the said seniority list, it acknowledged the said fact duly. Respondent No. 4 went before the Chancellor questioning fixation of seniority of the Petitioner over the Respondent No. 4. By the order impugned in the present writ petition, Chancellor has decided that the Petitioner should be deemed to be junior to the Respondent No. 4 and that it must be deemed that the Respondent No. 4 stood regularized on 6.3.1998.

From the facts, as narrated above, it would be crystal clear that for an inappropriate action on the part of the college at the relevant time, a cloud was created in relation to ascertainment of the date of entry of Respondent No. 4 in the substantive appointment of the college. There is no dispute, nor there can be any dispute, as the Statute provides specifically, the seniority will be counted only from the date of substantive appointment. The question is, therefore, what is the date of substantive appointment of the Respondent No. 4. Was it on or immediately after 6.3.1998, or was it on or immediately after 22.8.2003?

By not issuing a formal letter of appointment, the college has created an unjust and improper situation. The college has not entered appearance in the matter and has not filed any pleadings. The learned Counsel for the Petitioner contends that though formal letter of appointment was not issued by the college, but the college purported to prepare the service records of the Respondent No. 4 subsequent to 22.8.2003. In the circumstances, the Petitioner is contending that for all practical purposes, it must be deemed that the legal entry of the Respondent No. 4 in substantive appointment is subsequent to 22.8.2003 and, accordingly, the Respondent No. 4 should be deemed to be junior to the Petitioner. It appears to us that though the college has not entered appearance in this writ petition, but from its action of showing the Respondent No. 4 junior to the Petitioner, the college proceeded on the basis, as was submitted by the learned Counsel for the Petitioner. However, the college, under no circumstances, could take advantage of its own wrong. The Statute, under which regularization of ad hoc Lecturers was to be considered, did not authorize the college to play any role, whatsoever, in the matter of regularization. The Statute directed regularization by the State only, on the recommendation of the Committee to be constituted under the Statute. Once that was completed and communication to that effect was given to the college by the State on 6.3.1998, there was no just reason on the part of the college not to honour the command contained in the said letter dated 6.3.1998 and on the contrary purporting to once again forward the case of the Respondent No. 4 for consideration by the Committee constituted after the State of Uttarakhand was created.

In the circumstances, we are of the view that the Chancellor has rightly proceeded on the basis that for all practical purposes, including the Statute under which the Respondent No. 4 could be regularized, the said Respondent should be deemed to have been regularized on the date of communication of the decision of the State Government accepting the recommendation made by the Committee constituted under the Statute for that purpose and that having been done on 6.3.1998, the substantive appointment of the Respondent No. 4 in the college must be deemed to be from 6.3.1998.

We, accordingly, dismiss the writ petition.