Shambhu Sharan Verma vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J.

The writ petition has been argued by the learned counsel for the respondent Nos. 2 and 3 without his records of the writ petition.

Heard learned counsel for the parties.

The precise case of the writ petitioner for the reliefs claimed in the writ petition for regularization is based on the Regularization Rules of 2011 and of 2013. He has submitted that he was engaged on the post of driver on contractual basis in the year 2002. His case was that since then his service conditions were strictly governed by the stipulations as imposed by the respondent from time to time including the modalities for the grant of leave as such other service conditions including payment of increments and other service benefits.

The petitioner submits that though he was appointed as driver with Respondent No. 3 and he has worked continuously without any break and is still working in the office of respondent No. 3 with utmost efficiency to the satisfaction of his superiors and he carries an unblemished service records.

In support of the said contention, he places reliance on the correspondences which have been made by the authorities of the respondents on 05.03.2010 and 06.03.2010. The petitioner, while seeking relief of regularization under the Rules 2011 had made reference to the judgement rendered by Hon'ble Apex Court in State of Karnataka & Others Vs. Umadevi and others as reported in 2006(4) SCC 1 and in particularly, the finding which has been recorded in para 53 of the said judgement. Para 53 of the said judgement is reproduced as under:-

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, 1967 1 SCR 128, R.N. Nanjudappa (R.N. Nanjundappa V.T. Thimmiah, (1972) 1 SCC 409) 4 SCC, 507), and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in cases above referred to an in the light of this judgement. In the context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time insure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made but no sub judice, need not be reopened based on this Judgement, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

It contemplate framing of the Rules for regularization based on which the Regularization Rules of 2011 were framed and made applicable on daily wagers, work charged employees and the employees who are working on contractual basis or on an honorarium. Petitioner also refers the para for the purpose that if an incumbent has worked so for 10 years or over, an appropriate scheme was to be framed, and are to be regularized in phases. He also places reliance on the subsequent Rules as framed by the Statement Uttarakhand for regularization being Rules 2013 as notified on 30.12.2013.

The case of the petitioner is that since he has worked for the past 13 years on contractual basis on the post of driver, but since his service has not yet been regularized his claim is required to be considered under the rules thus framed. While on the other hand, the argument as extended by Mr. Rakesh Thapliyal, learned counsel for the respondents is that the claim for regularization of the petitioner may not fall to be within the ambit of the parameters of consideration as laid down by the Regularization Rules 2013 or that of Rules 2011, as it then was in vogue for the reason that the rather petitioner had never been appointed and once he was not appointed, which is a pre-condition to be considered for regularization, his claim cannot be considered under the Rules 2013 and hence a writ of mandamus would not lie.

So far as the argument of the learned counsel for the respondent regarding maintainability of the writ petition is concerned, the same may not be acceptable by this Court at this stage, because these facts are required to be gone into by the respondent on merits by their own rational decision making process, as to what is the nature of appointment of the petitioner and whether he was a daily wager or contractual employee, all these factual aspects are at least required to be determined by the statutory agencies like the respondent on the basis of statutory rules framed by the State on the directions of Uma Devi's case (Supra) and without considering the same, the respondents may not be permitted to take a stand that the petitioner cannot enforce the implications of Regularization Rules 2013 by filing writ petition under Article 226 of the Constitution of India.

Considering the aforesaid fact that till date, the respondents are yet to take decision on the claim of the petitioner for regularization which has been raised by him without expressing any opinion on the merits of the matter, the writ petition is disposed of with a direction to the respondent No. 2 to consider and pass an appropriate order on the claim of the petitioner for regularization within a period of six weeks from today in accordance with law.

After passing of the aforesaid judgement, Mr. Rakesh Thapliyal, learned counsel for the respondents submits that in the absence of there being prior prayer for enforcement of statutory rights under the Regularization Rules 2013, the writ of mandamus may not be maintainable but since this Court is sitting in an equitable jurisdiction and the writ petition is pending for sufficient long time, the petitioner is granted opportunity to file a representation, raising his claim for regularization under the Regularization rules, the aforesaid backdrops as considered above and if he does so by filing the same within a period of ten days from the date of receipt of certified copy of this order and the same would be considered by the respondents within a period of six weeks thereafter and they may pass an appropriate order in accordance with law, if necessary, after adherence of principles of natural justice.

Thus, the writ petition stands disposed of subject to above conditions. However, there would be no order as to costs.