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2010 DIGILAW 702 (UTT)

Samar Pal Singh v. Uttarkhand Sugar

2010-09-20

TARUN AGARWALA, V.K.BIST

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JUDGMENT : Tarun Agarwala and V.K. Bist, JJ. Heard Shri Davesh Bishnoi, the learned Counsel for the Petitioner and Shri M.C. Pandey, the learned Counsel for the Respondent Nos. 1 and 3. 2. The Petitioner was appointed as an Apprentice Manufacturing Chemist w.e.f. February 1, 1990 The appointment letter indicated that he was appointed as an Apprentice for a period of one year and, upon completion of his training period, he would be appointed on a regular post of Manufacturing Chemist provided there existed a vacancy, failing which, he would be discharged from the service. Upon completion of a period of one year, the Petitioner continued to work as an Apprentice. His services was not regularized on the post of Manufacturing Chemist on account of the fact that there did not exist a vacancy. In this regard, the Petitioner made a representation dated August 4, 1993 and, again on August 10, 2000 which fell on deaf ears and, eventually, the Petitioner approached this Court by filing the writ petition in the year 2005 praying for a writ commanding the Respondents to regularize his services on the post on which he was working since 1990 and, further direct the Respondents to consider him for promotion for Deputy Chemist in the D.P.C. scheduled to be held in the near future. 3. The Petitioner in his representation contended that juniors to him, namely, Amit Kushwaha, Alok Agarwal, M.C. Srivastava and V.K. Shukla have been regularized w.e.f. August 1995 whereas the Petitioner has been discriminated and has not been regularized. It transpires that Amit Kushwaha, who was junior to the Petitioner filed Writ Petition No. 14044/2001 before the Allahabad High Court which was allowed by a judgment dated April 21, 2003 in which a categorical finding was given that juniors to Amit Kushwaha had been regularized and, consequently, the learned single Judge directed the Respondents to regularize the services of the Petitioner as Manufacturing Chemist with all consequential benefits. This judgment was affirmed by a Division Bench by an order dated August 22, 2003 and, based on the said order, the U.P. Cooperative Sugar Factories Federation Limited, Lucknow regularized the services of Amit Kushwaha and Ors. w.e.f. October 7, 1995 Based on the said order of the regularization, Shri Alok Agarwala, who was senior to Amit Kushwaha and whose representation was allowed was also regularized with retrospective effect from August 1995. w.e.f. October 7, 1995 Based on the said order of the regularization, Shri Alok Agarwala, who was senior to Amit Kushwaha and whose representation was allowed was also regularized with retrospective effect from August 1995. Similarly, Shri M.C. Srivastava and Shri V.K. Shukla were also regularized. 4. Prior to the creation of the State of Uttarakhand, the Petitioner was also an employee of the U.P. Co-operative Sugar Factories Federation Limited and, in the common list of seniority, the Petitioner was shown senior to Shri Amit Kushwaha and Ors. whose names have been stated aforesaid. Upon the creation of the State of Uttarakhand, the Petitioner opted for the State of Uttarakhand and was posted in the Sugar Factory at Sitarganj at Udhamsingh Nagar. Since the representation of the Petitioner fell on deaf ears, he has filed the present writ petition. 5. In the counter affidavit, the Respondents admit that similarly situated persons who were appointed as Apprentice Manufacturing Chemists were regularized by the U.P. Co-operative Sugar Factories Federation Limited with retrospective effect. The Respondents have further admitted that pursuant to the interim order dated August 22, 2005 the Petitioner was regularized on the post of Manufacturing Chemist w.e.f. September 30, 2005 and that the Petitioner services was not regularized since he had not filed any petition. This Court by an interim order dated August 22, 2005 had directed that in the event any person junior to the Petitioner had been regularized, in that event, the case of the Petitioner shall also be considered. 6. The Respondents have admitted that juniors to the Petitioner were regularized by the U.P. Co-operative Sugar Factories Federation Limited and, consequently, the Court is of the opinion that the Petitioner should also be regularized with retrospective effect. 7. Since Respondent No. 5 U.P. Co-operative Sugar Factories Federation Limited has not appeared inspite of service, we accordingly issue a mandamus directing that the services of the Petitioner would be regularized w.e.f. August 7, 1995 i.e. the date when juniors to the Petitioner were regularized on the post of Manufacturing Chemist. Consequential relief, if any, shall be claimed by the Petitioner from the Respondents. 8. The Petitioner has also claimed a relief that he should be considered for promotion to the post of Deputy Chief Chemist. Consequential relief, if any, shall be claimed by the Petitioner from the Respondents. 8. The Petitioner has also claimed a relief that he should be considered for promotion to the post of Deputy Chief Chemist. The Respondent No. 1 in their counter affidavit have stated in paragraph 3 that the Petitioner's case would be considered as and when the promotion would take place. It has not been stated that the post of Deputy Chief Chemist is not available nor it has been stated that the Petitioner is not eligible. Consequently, we issue a writ of mandamus commanding the Respondents to hold a D.P.C. and consider the case of the Petitioner within three months from the date of the production of the certified copy of the order. The writ petition stands allowed.