State of Uttarakhand & others vs Kailash Chandra Joshi & others

SHARAD KUMAR SHARMA, J.

K.M. JOSEPH, C.J. (Oral)

Since all these appeals raise common questions, we are disposing of the same by this common judgment.

There is some delay in filing Special Appeal Nos. 313 of 2018, 315 of 2018 and 317 of 2018. After hearing the learned counsel for the parties, we

are inclined to condone the delay. Accordingly, the delay will stand condoned and the Applications for condonation of delay will stand allowed.

Appellants are the respondents in the writ petitions. We take Writ Petition (S/S) No. 671 of 2015, from which Special Appeal No. 299 of 2018 has

arisen, as the leading case. The reliefs sought in the said writ petition are as follows:

“I. Issue a writ order or direction in the nature of mandamus commanding and directing the respondent authorities to regularize the petitioner on the

Class IV post (Shramik) in the department on the basis of the Regularization Rules.

II. Issue a writ order or direction in the nature of mandamus commanding and directing the respondent authorities to pay the arrears of the salary on

the basis of VIth pay Commission from 1.1.2006.â€​

Briefly put, the case of the writ petitioners is that, though they have been working as daily wagers, they have not been regularised and, furthermore,

they have not been paid the minimum of the pay scale. After exchange of the pleadings, the learned Single Judge disposed of the writ petitions by the

following judgment dated 23.03.2017:

“Mr. M.C. Kandpal, Sr. Advocate assisted by Mr. Maneesh Bisht, Advocate, for all the petitioners.

Mr. BPS Mer, Brief Holder for the State of Uttarakhand. Since the common questions of law and facts are involved in all these petitions, the same

have been taken up together and decided by this common judgment.

Petitioners are working in the Forest Department for last more than 30-35 years. However, the respondent-Department, till date, has neither

regularized the services of the petitioners nor they have been paid the minimum of pay scale.

The only ground, taken by the respondent-State, for denying the status of a regular employee to the petitioners is that there are workmen senior to the

petitioners in seniority and non-availability of vacancies.

Accordingly, the present writ petitions are disposed of with the direction to the respondent-State to regularize the petitioners in service on the basis of

their seniority immediately as and when the posts become available. Till then, the State is directed to pay at least the minimum of pay scale to the

petitioners along with admissible allowances, within a period of eight weeks from today.

It is also made clear by way of abundant precaution that if the persons, junior to the petitioners, have been regularized, in that case, the petitioners shall

be regularized immediately and those juniors would be placed at the bottom.

All pending applications stand disposed of accordingly.â€​

Aggrieved, the appellants are before us.

We have heard Mr. Anil Kumar Bisht, learned Standing Counsel for the State / appellants and Mr. M.C. Kandpal, learned Senior Counsel assisted

by Mr. Chitrarth Kandpal, Advocate for the respondents / writ petitioners.

Learned Standing Counsel for the appellants does not dispute that, as far as payment of minimum pay is concerned, the same is being paid along

with DA. The learned Single Judge, in the impugned judgment, has further directed for regularisation of the petitioners in service on the basis of their

seniority immediately on the availability of the posts. In this matter, learned Standing Counsel would submit that the Court may only modify the

judgment and direct that it must be done in accordance also with the Rules of 2003, which admittedly are applicable. Further, the learned Standing

Counsel takes exception to the last paragraph of the judgment.

Learned Senior Counsel for the writ petitioners would submit that, even in the appeal memorandum, appellants have proceeded on the basis that

persons appointed after 1984 have been regularised; whereas, the writ petitioners have been appointed in the year 1982.

As far as the last paragraph of the impugned judgment is concerned, the learned Single Judge has proceeded to begin the said paragraph by the

words “by way of abundant precautionâ€. The learned Single Judge has, thereafter, proceeded to contemplate a situation, where juniors to the writ

petitioners have been regularised. In the said contingency, the learned Single Judge has finally directed that the writ petitioners shall be regularised

immediately and the persons, who are junior to the writ petitioners, shall be placed at the bottom.

In this regard, we notice that the persons, who are junior to the writ petitioners and who may have been so regularised if at all, are not made

parties. Secondly, we notice that, in the counter affidavit filed, there is a specific case set-up that the regularisation has been done in terms of the

seniority list (see paragraph 6 of the counter affidavit). There is also a case for the appellants that there are gaps in the service of the writ petitioners.

Having regard to these submissions, we are inclined to modify the judgment passed by the learned Single Judge in the following manner:

We add words “in accordance with the Rules of 2003 and also taking into consideration the law laid down by the Apex Court†in the penultimate

paragraph of the judgment after the words “when the posts become availableâ€​.

As far as the last paragraph, itself, is concerned, having regard to what we have said earlier in our judgment, the same cannot be sustained.

Accordingly, we also set aside the last paragraph of the judgment.

The appeals are allowed partially as above.