State Of Uttarakhand vs Ramesh Chandra Joshi And Another

Ramesh Ranganathan, CJ

Heard Mr. B.S. Parihar, learned Standing Counsel for the State Government, and Mr. Alok Mahra and Mr. Manish Bisht, learned Counsel for the

respondents.

This writ petition is filed by the State of Uttarakhand seeking a writ of certiorari to quash the order of the Public Services Tribunal, Uttarakhand in

Claim Petition no.30/NB of 2008 dated 18.10.2011. The petitioner herein was the first respondent before the Tribunal. They have invoked the

jurisdiction of this Court aggrieved by the order of the Public Services Tribunal allowing the claim petition, and in setting aside the order impugned

therein dated 11.10.2003.

Facts, to the limited extent necessary, are that the first respondent herein was appointed as a Junior Engineer on daily wages on 24.09.1985

pursuant to which he joined service on 12.12.1985. The Government of Uttar Pradesh issued G.O. dated 24.10.1989 seeking to regularize the services

of such of those daily wage employees who had completed 240 days of services in the previous three calendar years. A similar G.O. was issued

thereafter on 01.02.1992. The petitioner herein issued G.O. dated 01.08.1992 to the effect that the services of the daily wage employees would not be

engaged thereafter. The services of the first respondent was not regularized pursuant to the G.O. dated 24.10.1989 and G.O. dated 01.08.1992.

The first respondent herein filed WPSB No.30214 of 1992, before the Allahabad High Court, seeking regularization of his services. An interim

order was passed in the said writ petition directing that he be continued in service. While matters stood thus, the first respondent herein was appointed

in the regular pay scales with effect from 25.01.1994, albeit on an ad hoc basis, by the order of the Commissioner / Chairman dated 28.01.1994. The

writ petition, referred to hereinabove, was allowed by the Allahabad High Court by its order dated 08.11.2000.

In the said order, the Allahabad High Court held that it was not in dispute that the first respondent herein was working as a Junior Engineer since

12.12.1985, and continued as such till he approached the Allahabad High Court seeking a direction to the State Government to regularize his services;

as he had put in more than five years of service as a Junior Engineer by the time an interim order was passed on 26.08.1992, and was thereafter

working, it would be appropriate, in the interest of justice, that the State Government should consider his case, for regularization of services, afresh as,

by the date of the order, he had put in more than 15 years of service as a daily wager.

Pursuant thereto, order dated 22.12.2001 was passed by the petitioner herein regularizing the services of the first respondent from 25.01.1994 i.e.

from the date on which he was extended the benefit of regular scales of pay. More than one and a half year thereafter, proceedings dated 11.10.2003

were issued, canceling the earlier order of regularization dated 22.12.2001, on the ground that regularization of services of the first respondent was

contrary to the Rules and the G.Os; two other Junior Engineers, whose services were engaged on daily wages, were not regularized in service; and

the General Clauses Act enabled the authority, which had issued the order dated 22.12.2001, to cancel the same. The proceedings dated 11.10.2003,

however, make no mention of any specific statutory rule contrary to which the services of the first respondent were regularized.

The first respondent questioned the validity of the order dated 11.10.2003 before this Court by way of WPSS No.1507 of 2003. An interim order

was passed on 20.05.2004 staying the operation of the order dated 11.10.2003. However, by order dated 26.08.2008, the said writ petition was

dismissed on the ground that the petitioner had the alternative remedy of approaching the Public Services Tribunal.

The first respondent, thereafter, invoked the jurisdiction of the Tribunal by way of Claim Petition no.30/NB of 2008. The said Claim Petition, as

noted hereinabove, was allowed by order dated 18.10.2011. After the claim petition was allowed by the Tribunal, by its order dated 18.10.2011, the

services of the first respondent herein was again regularized by the Nainital Lake Regional Special Area Development Authority by its order dated

14.02.2013. This order of regularization has been subjected to challenge, by the first respondent herein, in WPSS No.642 of 2013.

In the order impugned in this writ petition dated 18.10.2011, the Tribunal held that the Nainital Lake Regional Special Area Development Authority

was constituted under the provisions of the Uttar Pradesh Special Area Development Authority Act, 1986; the claimant was initially appointed on daily

wages, and then in the regular pay scales of a Junior Engineer purely on an ad hoc basis; no service rules had been framed, under Article 309 of the

Constitution, to regulate the service conditions of Junior Engineers in the Special Area Development Authority; and by notification dated 12.03.1991,

certain posts were created, in the Nainital Lake Regional Special Area Development Authority, which included the post of Junior Engineer.

The Tribunal further held that the said notification dated 12.03.1991 stated that appointment shall be made, to posts as per the provisions of the

U.P. Development Authorities Centralized Services Rules; even though, no separate services rules were notified for recruitment to the post of Junior

Engineer in Greater Nainital Development Authority, as per the executive instructions issued, recruitment had to be made as per the conditions of the

Development Authorities Centralized Service Rules; no recruitment was, however, made, under these Rules, and Junior Engineers, working on daily

wages or on an ad hoc basis, were regularized, from time to time, without consulting the Public Services Commission; failure to consider, the

claimant’s case for regularization, amounted to discrimination; his name was rightly considered by the Secretary, Urban Development Authority

for regularization; and the order dated 11.10.2003 was passed without considering the fact that the services of a large number of similarly situated

junior engineers were regularized from time to time.

The Tribunal, thereafter, noted that, pursuant to the directions of the Allahabad High Court, the then Secretary, Avas Evam Nagar Vikas had

passed an order of regularization; the order dated 11.10.2003 did not take into consideration similarly situated daily wagers, or ad hoc junior engineers,

working in the Development Authority whose services were regularized; Section 21 of the General Clauses Act, 1904 conferred on the Authority,

which had passed the order, the power to revise/ review and cancel it; the record showed that the petitioner was the only Junior Engineer working on

an ad hoc basis in the Special Area Development Authority; the impugned order was not based on correct facts; and, since other similarly situated

Junior Engineers were regularized, the petitioner also deserved to be regularized, otherwise his case for promotion, to the next higher pay scale, would

suffer in future.

After holding that the judgment, in State of Karnataka Vs. Uma Devi, was inapplicable, since the regularization order was passed much before the

said judgment, the Tribunal held that similarly situated persons were regularized in Uttar Pradesh from time to time, and as late as in 2003-04; the

claimant cannot alone be discriminated on this ground, and his services deserved to be regularized; the claimant had stated that two other Junior

Engineers, namely, Mr. Bhawan Singh and Anand Ram, who were appointed a few months before the petitioner, on daily wages, had been

regularized; this averment was not categorically denied by the first respondent; the second respondent had admitted this fact in his written statement;

the claimant, being similarly situated as the other two employees, was rightly found fit for regularization, and there was no defect in the order of

regularization; as the order of regularization was valid, there was no justification in recalling the order; the impugned order was passed without

affording any opportunity of hearing to the claimant before the said order was passed; and, on this ground also, the order could not be sustained. The

Claim Petition was allowed, and the order impugned therein dated 11.10.2003 was set aside.

It is not even contended before us by Mr. B.S. Parihar, learned Standing counsel for the State Govt., that the order dated 11.10.2003 was passed

after giving the first respondent-claimant an opportunity of being heard. The Tribunal was, therefore, justified in quashing the said order for violation of

principles of natural justice. The petitioner herein has not chosen to pass any order afresh in accordance with principles of natural justice, after the

claim petition was allowed by the Tribunal by its order dated 18.10.2001, more than eight years ago. While the order of the Tribunal was no doubt

questioned before this Court, nothing disabled the petitioner herein from passing an order afresh complying with the rules of natural justice. As the

order dated 11.10.2003 was set aside, among others, on the ground of violation of principles of natural justice, the order of the Tribunal dated

18.10.2011 must be upheld on this short ground alone.

Mr. B.S. Parihar, learned Standing Counsel, would fairly submit that G.Os. dated 24.10.1989 and 01.02.1992 were issued to regularize the services

of daily wagers who had completed 240 days of service in the previous three calendar years. As noted hereinabove, the respondent-claimant joined

service on 12.12.1985, and could have been regularized in terms of the aforesaid Government Orders. It is for the reason that he was extended the

regular scales of pay from 25.01.1994 onwards, was the regularization order dated 22.12.2001 made applicable from 25.01.1994 onwards. The

specific contention, urged by the first respondent herein before the Tribunal, that the services of other similarly situated employees were regularized,

has not been denied before us by the learned Standing Counsel. The Tribunal has held such acts of the petitioner to be discriminatory.

The petitioner herein has sought a writ of certiorari to quash the order of the Public Services Tribunal. A writ of certiorari can be issued for

correcting errors of jurisdiction, such as in cases where the order is passed without jurisdiction, or is in excess of it, or as a result of failure to exercise

jurisdiction or where, in exercise of the jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly. The jurisdiction to issue a writ of

certiorari is supervisory and not appellate. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of

fact, however grave it may appear to be. The adequacy or sufficiency of evidence, and the inference of fact to be drawn therefrom, cannot be

agitated in certiorari proceedings (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477) as it is in the province of a court of appeal.

If the tribunal has erroneously refused to admit admissible and material evidence, or has erroneously admitted inadmissible evidence, or if a finding

of fact is based on no evidence, it would be an error of law which can be corrected by a writ of certiorari. Where the conclusion of law by the

Tribunal is based on an obvious mis-interpretation of the relevant statutory provisions, or in ignorance of it or even in disregard of it or is expressly

founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Whether or not an error is an error of law,

and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case, and upon the

nature and scope of the legal provisions which is alleged to have been misconstrued or contravened. (Syed Yakoob Vs. K.S. Radhakrishnan & Others

: AIR 1964 SC 477).

Unlike an appellate authority which can re-appreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not

substitute its views for that of the Tribunal, nor would it re-appreciate the evidence on record to arrive at a conclusion different from that of the

Tribunal whose order is impugned before it. Even if two views are possible, and the Tribunal has taken one of the possible views, the High Court

would not interfere, in the exercise of its certiorari jurisdiction, even if it were to be satisfied that the other possible view, canvassed before it, is more

attractive. A finding of fact reached, on the appreciation of evidence, cannot be reopened or questioned in writ proceedings save a finding of fact

which is either perverse or is based on no evidence. If a provision is reasonably capable of two constructions, and one construction has been adopted

by the authority, its conclusion may not always be open to correction in writ proceedings. (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR

1964 SC 477).

A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior tribunals. A writ can similarly be issued where, in

exercise of the jurisdiction conferred on it, the tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to

be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. (CIT

Vs. Saurashtra Kutch Stock Exchange Ltd. :(2008) 14 SCC 171 a;ndSyed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477). A writ of

certiorari can be issued in the case of illegal exercise of jurisdiction, and also to correct errors of law apparent on the face of the record, even though

they do not go to jurisdiction. It is only errors of law apparent on the face of the record, and not errors of fact though they may be apparent on the

face of the record, which can be corrected, (ShriAmbica Mills Co. Ltd. Vs. S.B.Bhatt and Anr. :AIR 1961 SC 97 0R;. Vs. Northumberland

Compensation Appeal Tribunal : (1952) 1 KB 338; and Nagendra Nath Bose Vs.Commr. of Hills Division : AIR 1958 SC 398, )and not every error

either of law or fact which can be corrected by a Court of appeal or revision. (T. Prem Sagar Vs.The Standard Vacuum Oil Company Madras and

Ors. : AIR 1965 SC 111; Bachan Singh and others Vs. Gaurishankar Agarwal and Others : (1972) 4 SCC 257; and Nagendra Nath Bose Vs. Commr.

of Hills Division : AIR 1958 SC 398).

Further an error of law, which can be corrected by a writ of certiorari, must be self-evident. It should not need an elaborate examination of the

record (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Anr. :AIR 1961 SC 970), or require a detailed examination or an elaborate argument to

establish it (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171H; ari Vishnu Kamath Vs. Syed Ahmad Ishaque and Ors. : AIR

1955 SC 233; Batuk K. Vyas Vs. Surat Borough Municipality and Ors. : AIR 1953 Bom 133.) An error cannot be said to be apparent if one has to

travel beyond the record to see whether the judgment is correct or not. It is an error which strikes on the mere looking, and does not need a long-

drawn out process of reasoning on points where there may conceivably be two opinions. Such an error would not require any extraneous matter to

show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. (CIT Vs. Saurashtra

Kutch Stock Exchange Ltd. :(2008) 14 SCC 171; Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd. : (2010) 13 SCC 336).â€​

It is only if the order of the Tribunal suffers from an error apparent would interference be justified. We find no such infirmity in the impugned

order passed by the Tribunal. The writ petition fails and is, accordingly, dismissed. No costs.