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Uttarakhand High Court · body

2013 DIGILAW 223 (UTT)

Subhash Barthwal v. State of Uttarakhand

2013-04-30

D.K.KOTIA, V.K.MAHESHWARI

body2013
Judgment [Per: Hon'ble V.K. Maheshwari, Vice Chairman (J)] 1. The petitioner has prayed for direction to the respondent no. 2 for giving appointment on the post Pump Operator w.e.f. 20.3.2007 instead of Beldar (Assistant Lineman). 2. The facts in brief are that petitioner was initially appointed as Beldar in erstwhile U.P. Jal Nigam in 1988. Later on, his services were transferred to Garhwal Jal Sansthan in February 1991. Since then he had been performing duties and functions of Pump Operator, which was certified time to time by the appropriate authorities. His name was also recommended for changing his designation from Beldar to Pump Operator, but of no consequences. The petitioner had also moved number of representations for changing his designation, but all in vain. 3. The petitioner had came to know that several other employees who were similarly placed have been given the nomenclature as well as service benefits as Pump Operator while the petitioner has been deprived from this benefit and thus, it is clearly a violation of the fundamental right of the equality. It is also stated that the petitioner had been discharging his duties with dedication and devotion. The petitioner has also stated that his last representation has also been rejected vide order dated 06.12.2012 and the subsequent representation was also dismissed on 01.03.2013. Hence this petition. 4. The petition has been opposed on behalf of respondent no. 2 and it has been admitted that the petitioner was initially appointed as Beldar as daily-wager in the U. P. Jal Nigam and whose services were transferred to Garhwal Jal Sansthan in the year 1991 and his services were regularized on 01.11.2003 to the post of Beldar, in accordance with the provisions of Uttaranchal Jan Sansthan Regularization (on the Group-D post) of Daily wages appointment Rules, 2003. Later on the petitioner was confirmed on the said post on 17.01.2006. It is further stated that the petitioner had accepted the regularization and confirmation without any protest. At present services of the petitioner are governed by Uttarakhand Jal Sansthan Employees Service Rules, 2004. There is no provision in the rules under which the designation of any employee may be changed from the post of Beldar to the post of Pump Operator. It is further stated that the petitioner had accepted the regularization and confirmation without any protest. At present services of the petitioner are governed by Uttarakhand Jal Sansthan Employees Service Rules, 2004. There is no provision in the rules under which the designation of any employee may be changed from the post of Beldar to the post of Pump Operator. It is further stated that under the provisions of above-mentioned rules, the cadre of pump operator contains the following posts: (1) Pump House Superintendent (2) Shift Incharge (Hand Pump Operator and (3) Pump Operator (4) Pump Attendant. It is further stated that under the rules, the post of Pump operator can only be filled by promotion of pump attendant, who has completed five years service in the cadre subject to rejection of unfit. Similarly, the post of Pump Attendant can only be filled by direct recruitment as well as by promotion of Class-D employees having at least ITI diploma in electric trade. Thus, the minimum qualification for the pump attendant is ITI in electric trade. The petitioner is not qualified. He belongs to the class-IV post. No Class-IV employee can directly be promoted to the post of Pump Operator, thus the petition is devoid of merit and is liable to be dismissed. 5. The same written statement has been adopted by the respondent no. 1. 6. A rejoinder affidavit has also been filed on behalf of the petitioner on 21.11.2013 reiterating the facts already narrated in the petition. Large numbers of documents have been filed on behalf of the parties. 7. We have heard both the parties and perused the record carefully. 8. Several facts are admitted in this case: i. That the petitioner had joined the service to the post of Beldar (Assistant Lineman) in November 1989 in UP Jal Nigam. ii. That the services of the petitioner were transferred to Garhwal Jal Sansthan in February, 1991. iii. That the services of the petitioner were regularized by the order of Chief General Manager, Garhwal Jal Sansthan on 21.07.2004 to the post of Beldar. iv. That the petitioner was confirmed to the post of Beldar on 17.01.2006, 9. But the controversy in this petition whether he has been deprived deliberately from the post of Pump Operator. iii. That the services of the petitioner were regularized by the order of Chief General Manager, Garhwal Jal Sansthan on 21.07.2004 to the post of Beldar. iv. That the petitioner was confirmed to the post of Beldar on 17.01.2006, 9. But the controversy in this petition whether he has been deprived deliberately from the post of Pump Operator. In this contest, it is contended that the petitioner had been discharging duties as Pump Operator since 1991 and has gained sufficient experience, therefore, considering his experience and abilities, he should have been regularized on the post of Pump Operator. In support of this contention, it has also been urged that similarly situated persons were confirmed to the post of Pump Operator w.e.f. 20.03.2007. Therefore, the petitioner seeks the regularization as well as confirmation on the post of Pump Operator on the basis of parity and equality. On the other hand, it has been contended that the petitioner cannot be regularized or confirmed on the post of Pump Operator as he does not possess the requisite qualification for the post of Pump Operator and further no Class-IV employee can directly be promoted to the post of Pump Operator. It is also contended that the petitioner cannot claim equality against any illegal action of promotion of any Class-IV employee to the post of Pump Operator, if any. In support of this contention, the rules of Uttaranchal Jal Sansthan Regularization (on Group-D Post) of Daily-wages Appointment Regulations, 2003 and Uttaranchal Jal Sansthan Employees Service Rules, 2004 have been referred. It is true that there is no provision in the rules, which provides the promotion of any Class-IV employee directly to the post of Pump Operator. Moreover, the petitioner is not claiming the post of Pump Operator on the basis of qualification, as there is no claim of the petitioner that the petitioner possess the requisite qualification. The only contention of the petitioner is that similarly situated persons have been promoted to the post of Pump Operator and the petitioner has deliberately been deprived of this right. It is an illegal action on the part of the respondents. In this contest, it is also clear that the respondents cannot shriek from this responsibility on the ground of any illegal action as that action also was taken by the respondents. We have given our thoughtful consideration to the rival contentions of the parties. It is an illegal action on the part of the respondents. In this contest, it is also clear that the respondents cannot shriek from this responsibility on the ground of any illegal action as that action also was taken by the respondents. We have given our thoughtful consideration to the rival contentions of the parties. In the present case, the petitioner is not claiming promotion on the ground of qualification, but he claims regularization on the post of Pump Operator on the ground of parity and equality. In this contest, the petitioner had referred the interim seniority list of the Pump Operators issued on 18.2.2014 (Copy Annexure A-33). This list reveals that the employees placed at SI No. 188, 215, 216, 219, 221, 222, 223, 224, 233, 234, 235, 236, 237, 238, 241, 242, 244, 253, 258, 259 and 261 have been admitted in the cadre of Pump Operators while none of them hold the requisite minimum qualification of ITI diploma in electric trade. No explanation has been given on behalf of the respondents as to how these employees have been promoted. Only it is contended that the petitioner is not entitled to claim parity only on the ground of any illegal action. In case, the respondents have committed any illegality by promoting any employees de-hors the rules, the petitioner cannot claim parity. It is also contended that under the rules, there is no provision for changing of cadre. It is true that the petitioner was appointed and regularized to the post of Beldar, but he has categorically pleaded that since he joined the Garhwal Jal Sansthan in 1991, he had been discharging the duties and functions of Pump Operator. There is no reply on behalf of the respondents regarding this fact, so he holds that the petitioner had been discharging the functions of Pump Operator since a quite long time. Not only this, the name of the petitioner has been recommended by the departmental officer for his promotion to the post of Pump Operator. In this regard, the letter of Executive Engineer dated 27.11.1991 (Copy Annexure A-1), the second letter dated 03.01.1992(Copy Annexure A-8), third letter dated 25.10.1996 (Copy Annexure A-9), letter dated 23.09.1997 (Copy Annexure-A11) are relevant. Apart from it, an experience certificate has also been issued in his favour i.e. Copy Annexure A-10. In this regard, the letter of Executive Engineer dated 27.11.1991 (Copy Annexure A-1), the second letter dated 03.01.1992(Copy Annexure A-8), third letter dated 25.10.1996 (Copy Annexure A-9), letter dated 23.09.1997 (Copy Annexure-A11) are relevant. Apart from it, an experience certificate has also been issued in his favour i.e. Copy Annexure A-10. There is no reply on behalf of the respondents as to how these recommendations have been made. 10. The another important aspect is that the similarly situated persons have been promoted which is evident from the interim seniority list filed on behalf of the petitioner with the rejoinder affidavit as Annexure A-33. No replies have been filed regarding this list as to how the employees mentioned above have been promoted without having the requisite qualification as well as directly from the post of Beldar. The respondents cannot be permitted to deprive the petitioner to be placed equal to other employees, who were equally placed. Under the above circumstances, we reach to the conclusion that as the other employees have been promoted to the post of Pump Operator even in the absence of the requisite qualification. Apart from the parity, it is also important that the petitioner has gained sufficient experience for the work of Pump Operator and so the minimum qualification becomes irrelevant. Therefore, the petitioner is also entitled for consideration to be promoted to the post of Pump Operator w.e.f the date his juniors were admitted to that cadre and the petition deserves to be allowed accordingly. 11. The learned counsel for the respondent no.2 has also contended that the petitioner has accepted the regularization and confirmation to the post of Beldar, therefore, his claim for the post of Pump Operator is delayed and in support of this contention, the learned counsel for the respondent no. 2 has referred the following case : i. State of Uttaranchal and another vs. Sri Shiv Charan Singh Bhandari & others, 2013 (2) UD, 407, ii. Kailash Nath Harbola Vs. Additional Director & other, 2013 (2) UD, 526. We have carefully gone through the abovementioned cases and reach to the conclusion that the principle of law laid down in these cases is not applicable in the present case and there is no delay on the part of the petitioner for claiming the post of Pump Operator. Kailash Nath Harbola Vs. Additional Director & other, 2013 (2) UD, 526. We have carefully gone through the abovementioned cases and reach to the conclusion that the principle of law laid down in these cases is not applicable in the present case and there is no delay on the part of the petitioner for claiming the post of Pump Operator. The record reveals that since 1991, the petitioner is making sincere efforts and preferring several representations, but it is the respondent no. 2, who is not taking any action, therefore, there is no delay and we do not find any force in the contention of the respondent. 12. Therefore, the petitioner is also entitled for consideration to be promoted to the post of Pump Operator with effect from the date his juniors were admitted to that cadre and the petition deserves to be allowed accordingly. ORDER 13. The petition is allowed. The respondent no.2 is directed to promote the petitioner to the post of Pump Operator from the date of promotion of other similarly placed employees and further to grant him all service benefits. No order as to costs.