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2017 DIGILAW 94 (UTT)

Dewani Ram Arya v. State of Uttarakhand

2017-02-14

SUDHANSHU DHULIA

body2017
JUDGMENT : Sudhanshu Dhulia, J. The petitioners before this Court belong to Scheduled Caste community and were working as Workshop Attendants in private Polytechnic at Almora and Nainital respectively. Since the post of Workshop Instructors were vacant, petitioner no. 1 and petitioner no. 2 continued to work as Instructor (Welder) and Instructor (Fitter) respectively. The Institute was taken over by the State and it became the State Institute w.e.f. 12.04.1987. 2. Admittedly, there were two posts of Instructor for Scheduled Caste candidates. In spite of which, the petitioners having all the requisite qualifications at the relevant time were not absorbed as Instructors but reverted to their original post of Workshop Attendants. This order was challenged by the petitioners before the Tribunal by filing a claim petition. The claim petition of the petitioners was allowed by the Tribunal. The relevant portion of the order passed in claim petition reads as under:- “10. The irresistible inference thus is that both the petitioners, who were legitimately holding the posts of workshop Instructors had acquired a vested statutory right under the “Take over scheme” and, could not be reverted in the cavalier fashion adopted by the respondents. This apart, no heed was paid to the Constitutional Scheme reserving 18% posts for the members of Scheduled Caste and Scheduled Tribes. At the risk of repetition it may be mentioned that the factum of the petitioners’ belonging to the reserved category and assignment of all the nine posts to the members of the general category was not controverted in the written statement. The Respondents’ explanation that the policy of reservation did not apply to the present case, is simply mentioned for the purpose of record, otherwise requires no serious attention, because, by no stretch of imagination the posts of Workshop Instructor could be elevated to a super specialty. 11. Resultantly, the petition succeeds, and is allowed, accordingly the order of reversion dated 2.4.1987 contained in Annexure-1 is hereby quashed, both the petitioners shall be deemed to be holding the posts of Workshop Instructors ever since the Take over of the Institution. 11. Resultantly, the petition succeeds, and is allowed, accordingly the order of reversion dated 2.4.1987 contained in Annexure-1 is hereby quashed, both the petitioners shall be deemed to be holding the posts of Workshop Instructors ever since the Take over of the Institution. But keeping in view the balance of equalities that the petitioner did not discharge the duties of Workshop Instructors and the financial constraint of an in-fant State they would not get any arrears of pay, all other service benefits would, of-course accrue to them and their pay shall now be fixed with effect from 1.4.2000 on the notional basis of having earned annual increments. No gain saying that the petitioners would be entitled to the benefit of the revised pay scale applicable to the post of a Workshop Instructor. 12. Before parting with this matter We would like to record that in order to avoid any reversion in of any Workshop Instructors working in the cadre for all this while it may be in the fitness of things that either the Respondents rectify their initial mistake, in listing the cadre strength to nine instead of eleven, committed at the time of Take over or create two supernumerary posts.” 3. It is again an admitted fact that this order of Tribunal has now attained finality as this order has never been challenged by the State or by the Polytechnic before any Forum. However, when the next higher promotional grade was not being given to the petitioners, they had approached the respondent authorities in which there has been certain communications in favour of the petitioners but with no effective result. Petitioner no.2 i.e. Kishori Lal Tamta had earlier filed a writ petition before this Court being WPSS No. 1576 of 2007, which was disposed of by this Court vide order dated 22.07.2014 by passing the following order:- “3. This writ petition was filed in the year 2007. Thereafter, it came up for hearing before this Court for the first time in the year 2013. The petitioner slept over for almost six years and there in no application on record moved by the petitioner which suggest for listing of the matter for expediting the hearing, although counter affidavit was filed in the year 2008. However, the petitioner claims regularisation under the Regularisation Rules, although there is no prayer for regularization but presently a prayer is being made. 4. However, the petitioner claims regularisation under the Regularisation Rules, although there is no prayer for regularization but presently a prayer is being made. 4. Although, no relief can be granted to the petitioner but the liberty is given to the petitioner to move a representation before the Director, Technical Education, Uttarakhand who shall consider the regularization of the petitioner in accordance with law and pass speaking order in this regard. 5. Writ petition disposed of. No order as to cost.” 4. Consequent to the order of this Court, petitioner no. 2 moved a representation before the respondent authorities and the same was rejected on the ground that the petitioner no. 2 was not having requisite qualifications and petitioner was never regularized on the post of Instructor. These two conditions have absolutely no meaning inasmuch as the fact remains that the petitioners had all the qualifications of Instructors as already been held by the Tribunal i.e. three years certificate in the concerned trade from GSTS or High School with certificate in the concerned trade of ITI/GITI/Polytechnic or Diploma in respective branch. The finding of the Tribunal was never challenged even before this Court. The qualification of Instructor is governed by the Rules known as the Uttar Pradesh Technical Education Department Non-Gazetted Technical Service Rules, 1988. 5. Both the petitioners are High School and have diploma in their respective trade i.e. Welder and Fitter respectively from the Industrial Training Institute, Almora and Nainital. Therefore, it cannot be said that the petitioners were not regularized inasmuch as there is a categorical finding of the Tribunal that the services of the petitioners stood absorbed as Instructors. There was no further question of their being regularized. 6. In view of the aforesaid, the writ petitions succeed. The order dated 10.10.2014 passed by respondent no. 3 (Annexure No. 23 in WPSS No. 2347 of 2015) is hereby quashed. Both the petitioners by now have reached the age of superannuation and retired from service. Respondent authorities are hereby directed to grant promotional pay scales to the petitioners as per rules and calculate their pension accordingly. The actual monetary benefits will be given for the purposes of pension alone. Let the needful be done in the matter within a period of three months from the date of production of a certified copy of this order.