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2012 DIGILAW 760 (UTT)

Mahendra Singh Bisht v. State of Uttarakhand

2012-12-13

K.J.SENGUPTA

body2012
Judgment Kalyan Jyoti Sengupta, J. By this writ petition, the petitioners have challenged the order dated 13th November, 2003 passed by the respondent No.3, General Manager Uttarakhand, Jal Sansthan, Nainital by which services of the petitioners have been regularized to the post of Pump Attendant. The impugned order was passed on 13th November, 2003, and after this order was passed, the petitioners each of them were working in the post of Pump Attendant which is indisputably a Group-D post. The writ petition has been filed on 8th July, 2007. Therefore, apparently, it was filed after more than three years. The fact of the case is as follows:- 2. All the petitioners were appointed by direct recruitment to the post of Pump Operator in the Construction Division of U.P. Jal Sansthan, Almora. Thereafter, in the year 1991, certain schemes of the Jal Sansthan were transferred to Kumaon Jal Sansthan, and consequently, the services of the petitioners were transferred to the newly formed body known as Kumaon Jal Sansthan. At the time of transfer in the said body, each of the petitioners was working as Pump Operator viz same status. Thereafter, in the year 2002, Kumaon Jal Sansthan and Garhwal Jal Sansthan were merged into one body by creating Uttaranchal Jal Sansthan. After creation of Uttaranchal Jal Sansthan, and even after the transfer of the petitioners to Kumaon Jal Sansthan, each of the petitioners has been working as Pump Operator. It is also stated the petitioners, each of them, having the requisite qualification to work in the post of Pump Operator as on date they were initially appointed on the daily wages post as each of them was holding certificate of ITI. 3. The grievance of the petitioners is that under the provision of regularization, the petitioners opted for having been regularized in the post of Pump Operator under relevant legal provision instead they were regularized in the post of Pump Attendant which is inferior post. This has been done whimsically and illegally with sole motive of arbitrariness. 4. 3. The grievance of the petitioners is that under the provision of regularization, the petitioners opted for having been regularized in the post of Pump Operator under relevant legal provision instead they were regularized in the post of Pump Attendant which is inferior post. This has been done whimsically and illegally with sole motive of arbitrariness. 4. Learned counsel for the respondents contends that the writ petition should be dismissed in limine as the petitioners are estopped from challenging the said impugned order, and it has been filed long after three years, and that too after accepting the impugned order which he says, the petitioners each of them are not qualified as such they were not engaged in any substantive post at any point of time and they were daily rated workers. Under no circumstance, they should be absorbed in the said post. 5. After having heard the learned counsel for the parties, it appears that the question of delay has been taken. In my view, having regard to the time taken to file the writ petition, I do not find there is extraordinary delay. It is a complaint of taking arbitrary as well as whimsical action by the respondents. The dispute is squarely covered under the provision of Article 14 of the Constitution of India as the Article 14 protects against any illegality and arbitrariness and also to ensure equality before the law. 6. In the light of this observation, this Court thinks that the question of estoppel or acquiescence hardly matter as it is a question of violation of provision of the Constitution, and it is settled position of law there cannot be estoppels or acquiescence as against the provision of the Constitution. Therefore, I overrule the preliminary contention of the learned counsel for the respondents. 7. The petitioners, specific case is that they were appointed as daily rated Pump Operator and they were transferred ultimately to the present body and they had still been working as Pump Operator and they were having requisite qualification. This fact has not been dealt with at all in the counter affidavit. Therefore, this fact is now deemed to have been admitted. 8. Now, the question is whether on the admitted fact the petitioners are entitled to be regularized under the provision of law. The respondents authority have not disputed petitioners’ entitlement to the regularization under the law. This fact has not been dealt with at all in the counter affidavit. Therefore, this fact is now deemed to have been admitted. 8. Now, the question is whether on the admitted fact the petitioners are entitled to be regularized under the provision of law. The respondents authority have not disputed petitioners’ entitlement to the regularization under the law. But it appears the respondents have not applied the correct law on the admitted fact. Learned counsel for the respondents is fair to inform that post of Pump Operator is a Group-C post whereas Pump Attendant is a Group-D post. Two separate regulations have been framed for regularization of the daily rated workers. Uttaranchal Jal Sansthan (Outside the purview of Uttaranchal Public Service Commission) (Regulation on Group-C Post) on Daily Wages Appointment Regulation, 2003 for group-C has been framed. This has been published in official gazette on 9th October, 2003. Section 4 of the Regulation provides eligibility criteria as follows:- “4 (1) Any person who – (a) was directly appointed on daily wages basis on a Group ‘C’ post in the Garhwal/Kumaon Jal Sansthan prior to 29th June, 1991 and continuing in service as such on the date of commencement of these Regulations; and (b) possessed requisite qualifications prescribed for regular appointment for that post at the time of such appointment on daily wages basis under the relevant Service Regulations, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in the Uttaranchal Jal Sansthan in Group ‘C’ posts, on the date of commencement of these Regulations on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant Service Regulations or Orders. (2) In making regular appointments under these Regulations, reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes and other categories shall be made in accordance with the orders of the Government in force at the time of regularization under these Regulations. (3) For the purpose of sub-rule (1) the Chief General Manager of Uttaranchal Jal Sansthan shall constitue a State Level Selection Committee. (3) For the purpose of sub-rule (1) the Chief General Manager of Uttaranchal Jal Sansthan shall constitue a State Level Selection Committee. (4) The Appointing Authority shall, having regard, to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of Seniority as determined from the date of order of appointment on daily wages basis and if two or more persons were appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with such relevant records, pertaining to the candidates, as may be considered necessary, to assess their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4), and if it considers necessary, it may interview the candidates also. (6) The Selection Committee shall prepare a list of selected candidates in order of seniority and forward the same to the Appointing Authority.” 9. As I recorded that the petitioners were daily rated workers appointed on daily wages as Pump Operator meaning thereby in Group-C post and they were having requisite qualification. Therefore, in my view, they should have been regularized applying this Regulation instead of applying Regulation in Group-D post. 10. In my view, there is no provision at all that any person at the time of regularization can be downgraded to any post. In one word, the impugned order passed had no legal basis at all on the factual aspect of the matter and the petitioners should not have been thrown out of the employment by this arbitrary action. As I have already held any action without any foundation of law or without applying the correct provision of law is out and out an arbitrary action and based on personal whims. Unlike individual person, body, corporate or statutory body cannot act what is not permitted by law. This artificial body is not permitted to do what has been done in this case. 11. Therefore, I declare that regularization of the petitioners to the post of Pump Attendant by the impugned order is not a valid one and such regularization should have been made to the post of Pump Operator. I clearly appears to me that the right being regularization has crystallized and this has even been recognized. 11. Therefore, I declare that regularization of the petitioners to the post of Pump Attendant by the impugned order is not a valid one and such regularization should have been made to the post of Pump Operator. I clearly appears to me that the right being regularization has crystallized and this has even been recognized. I, therefore, direct respondents to regularise the petitioners to the befitting post of Pump Operator if there is any vacant post available at present. If no vacant post is available, this should be done as soon as vacancy arises and without appointing them no post of Pump Operator should be filled up as the petitioners right of being regularized has been denied in the year 2003. However, I make it clear this order of promotion will be prospective effect. 12. The writ petition is disposed of. 13. There will be no order as to costs.