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2018 DIGILAW 251 (UTT)

U. C. JOSHI v. STATE OF UTTARAKHAND

2018-05-08

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT K.M. Joseph, C.J. (Oral) Petitioners have approached this Court seeking the following reliefs: “(i) Issue writ rule or direction in the nature of mandamus commanding to the respondents to grant the benefit of regularization w.e.f. 21.01.1991 from when the same was given to their counter parts who are serving in State of Uttarakhand in view of the judgment and order dated 25-05-2010 passed in writ petition no. 30339 of 2010 Dr. Muinuddin and others vs. State of U.P. and others (contained as Annexure No. 4 to the writ petition) and in pursuance to the Government Order No. 213 (1) and 213(3) dated 28-07-2011 passed by the State of Uttar Pradesh and also in pursuance to the directions given by the Public Service Tribunal, Lucknow in claim petition no. 1736 of 2008 and 325 of 2008 filed by similarly situated persons after calling the entire records from the respondents. (ii) Issue writ rule or direction in the nature of mandamus directing the respondents to prepare the seniority of the petitioners afresh and grant all consequential benefits to the petitioners and considered their case for further promotion w.e.f. date when the same was given to their juniors. (iii) Issue any other writ rule or direction for a suitable compensation at least to Rs. 20 lacs or such amount which the court may quantify and directed to recover from the erring officer and also to grant 18 % interest to the petitioners." 2. Briefly put, the case of the petitioners is as follows: 3. Petitioners were appointed as Ayurvedic Doctors in the year 1986, though as ad hoc. A decision was taken by order dated 18.01.1991 for adjustment of the Medical Officers-III in the Ayurvedic / Unani Medical Service Cadre on the vacant post of Medical Officer (Community Health) after abolishment of MO.III the post of Block level PHC. The appointments were made under Subordinate Gazetted Medical Services (Ayurvedic and Unani) Rules 1964. There is reference to Uttar Pradesh Regularisation of Ad-hoc Appointments (On Posts Within The Purview Of The Public Service Commission) Rules, 1979, under which the process of regularization of eligible ad hoc personnel was undertaken. Various personnel were regularized. Thereafter, a meeting was convened in the Chairmanship of the then Home Minister, wherein recommendation was made that the State Level control will be made by the Director Ayurvedic. Various personnel were regularized. Thereafter, a meeting was convened in the Chairmanship of the then Home Minister, wherein recommendation was made that the State Level control will be made by the Director Ayurvedic. Pursuant thereto, it was directed that the Medical Officers (Community Health) will be paid salary and till the service regularization rules are framed, they will be in the administrative control of Director, Ayurvedic and Unani in the State Level. Petitioners were given posting in Primary Health Centre of Hill Region of the erstwhile State of Uttar Pradesh vide order dated 12.07.1994. Finally, the petitioners' services were regularized by order dated 30.03.2010 with effect from 27.01.2006. Various junior persons were regularized in the year 1991 ignoring the seniority of the ad hoc Medical Officers, which was against the condition provided in 1979 Regularisation Rules. Similarly situated persons (1169 officers) represented before the State of Uttar Pradesh. Suffice it to say that finally, they came to be regularized with effect from 21.01.1991. Later, the petitioners also made a representation, according to them, seeking regularization from 21.01.1991 when the persons junior to them were regularized. Writ Petition No. 20 of 2011 (S/B) and Writ Petition No. 13 of 2011 (S/B) were, in fact, disposed of by this Court on 02.02.2011. Pursuant thereto, Annexure-16 is produced to show that their claim was rejected on 08.04.2011. The rejection, according to them, was based on order dated 06.04.2010, by which the earlier order dated 12.01.2010 granting regularization with effect from the year 1991 was set aside. Certain persons filed Writ Petition No. 30339 of 2010 before the Allahabad High Court, which was disposed of in favour of the petitioners on 25.05.2010 therein directing the State of Uttar Pradesh to pass corrected list of regularization. Thereafter again, the State of Uttar Pradesh issued two Government Orders being G.O. Nos. 213(1) and 213 (2) dated 28.07.2011, regularizing the left out senior medical officers from 21.01.1991. On 15.02.2012, petitioners made Annexure-17 representation to respondent no. 1. Respondent no. 3, it is alleged, made Annexure-18 recommendation for regularization of the petitioners w.e.f. 21.01.1991. Thereafter again, since no decision was taken, the petitioners again submitted a representation on 07.10.2012. Still further, on 30.04.2012, it is alleged, final seniority list by treating the petitioners' substantive appointment with effect from 27.01.2006 was issued. 1. Respondent no. 3, it is alleged, made Annexure-18 recommendation for regularization of the petitioners w.e.f. 21.01.1991. Thereafter again, since no decision was taken, the petitioners again submitted a representation on 07.10.2012. Still further, on 30.04.2012, it is alleged, final seniority list by treating the petitioners' substantive appointment with effect from 27.01.2006 was issued. By office memo dated 30.04.2013, the objections of the petitioners have cursorily been rejected by observing that since the Rules / Government Orders issued by the State of Uttar Pradesh are not applicable in the State of Uttarakhand after reorganization, it is not possible to regularize the petitioners' services from 1991. The office memo dated 30.04.2013 is produced as Annexure-19; this too remained unchallenged. There is reference to Annexure-20 judgment passed in favour of one Dr. Hari Shankar Siromani, who approached the Public Service Tribunal, Uttar Pradesh seeking regularization with effect from 1991 as well as all consequential benefits. As far as consequential benefits are concerned, it was allowed. Seeking inspiration there from, apparently, six persons like the petitioners, approached the Public Service Tribunal and the Public Service Tribunal allowed the matter in their favour vide order dated 27.06.2013. It is the further case of the petitioners that when this fact came to the knowledge of the petitioners, they again approached respondent no. 2 by filing Annexure-21 representation. Still later, they approached the Public Service Tribunal, Uttarakhand, Circuit Bench at Nainital by filing Claim Petition No. 22 of 2014. The Tribunal rejected the claim petition by Annexure-1 order dated 07.09.2016, and hence the prayers. 4. We heard Mr. Kishore Kumar, learned counsel for the petitioners and Mr. Pradeep Joshi, learned Standing Counsel on behalf of the State of Uttarakhand. 5. We may notice that initially the petitioners had filed the Writ Petition No. 20 of 2011 (S/B), which had been disposed of by directing the representation of the petitioners to be considered. The representation was rejected on 08.04.2011. We may notice that the said order dated 08.04.2011 (Annexure 16) has not been challenged. Next, we notice that the petitioners had, in fact, filed Writ Petition (S/B) No. 293 of 2012. The representation was rejected on 08.04.2011. We may notice that the said order dated 08.04.2011 (Annexure 16) has not been challenged. Next, we notice that the petitioners had, in fact, filed Writ Petition (S/B) No. 293 of 2012. That was disposed of on 03.10.2012 with certain directions and, thereafter, we may notice that a preliminary seniority list was prepared, in which the date of substantive appointment of the petitioners was shown as 27.01.2006 and finally, the date of appointment of the petitioner was shown as 27.01.2006. Against tentative seniority list, petitioners filed objection, which too was rejected on 30.04.2013. This order of rejecting objection and determining seniority based on substantive date of appointment being 27.01.2006 was also not challenged by the petitioners. There is, in fact, no reference to Writ Petition (S/B) No. 293 of 2012 in the body of the writ petition. More importantly, it is true that the case of the petitioners appears to be that after rejection of the representation by order dated 08.04.2011 (Annexure 16), there was a recommendation made by the respondent No. 3 and therefore, it may not be necessary to challenge the order dated 08.04.2011 as the basis for rejection was the order of State of Uttar Pradesh, which, in turn, was set aside by the Allahabad High Court (Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand would submit that it was only forwarded and not recommended). 6. The core issue which must be decided however is whether the Public Service Tribunal was right in noting that it may not have the jurisdiction to deal with the matter having regard to the declaration of law in State of Uttarakhand and another Vs. Umakant Joshi reported in 2012 (1) UD, 583. It is relevant to extract paragraph 11 of the said judgment: “11. We have considered the respective submissions. It is not in dispute that at the time of promotion of Class-II officers including Shri R.K. Khare to Class-I posts with effect from 16.11.1989 by the Government of Uttar Pradesh, the case of respondent No.1 was not considered because of the adverse remarks recorded in his Annual Confidential Report and the punishment imposed vide order dated 23.1.1999. Once the order of punishment was set aside, respondent No.1 became entitled to be considered for promotion to Class-I post with effect from 16.11.1989. Once the order of punishment was set aside, respondent No.1 became entitled to be considered for promotion to Class-I post with effect from 16.11.1989. That exercise could have been undertaken only by the Government of Uttar Pradesh and not by the State of Uttaranchal (now the State of Uttarakhand), which was formed on 9.11.2000. Therefore, the High Court of Uttarakhand, which too came into existence with effect from 9.11.2000 did not have the jurisdiction to entertain the writ petition filed by respondent No.1 for issue of a mandamus to the State Government to promote him to Class-I post with effect from 16.11.1989, more so because the issues raised in the writ petition involved examination of the legality of the decision taken by the Government of Uttar Pradesh to promote Shri R.K. Khare with effect from 16.11.1989 and other officers, who were promoted to Class-I post vide order dated 22.1.2001 with retrospective effect. It appears to us that the counsel, who appeared on behalf of the State of Uttarakhand and the Director of Industries did not draw the attention of the High Court that it was not competent to issue direction for promotion of respondent No.1 with effect from a date prior to formation of the new State, and that too, without hearing the State of Uttar Pradesh and this is the reason why the High Court did not examine the issue of its jurisdiction to entertain the prayer made by respondent No.1." 7. Petitioners are seeking the benefit of regularization from 21.01.1991. State of Uttarakhand was created by the Uttar Pradesh State Reorganization Act, 2000 with effect from 09.11.2000. The order of regularization passed by the State of Uttarakhand is of the year 27.01.2006. It is well within its power to do so. Insofar as the petitioners are concerned, they are seeking the relief that they should get the benefit prior to the date of creation of the State of Uttarakhand. We would think that the matter appears to be concluded against the petitioners by virtue of Paragraph 11 of the judgment in the case of State of Uttarakhand and another Vs. Umakant Joshi reported in 2012 (1) UD, 583, which we have referred to. We would think that the matter appears to be concluded against the petitioners by virtue of Paragraph 11 of the judgment in the case of State of Uttarakhand and another Vs. Umakant Joshi reported in 2012 (1) UD, 583, which we have referred to. It may be true that the State of Uttar Pradesh was already made a party and no counter affidavit has been filed, but since it is a matter relating to the jurisdiction as declared by the Hon'ble Apex Court, we may not be justified in taking a different view than the view taken by the Tribunal. No doubt the Tribunal has gone into the question of delay, which is criticized by Mr. Kishore Kumar, learned counsel for the petitioners by saying that once the jurisdiction is disclaimed then no foray into the region of merit is permissible, but that apart even if we go on the basis of the lack of jurisdiction, which may non suit the petitioners, Mr. Kishore Kumar, learned counsel for the petitioners would make an attempt to wriggle out of the dictum in the case of State of Uttarakhand and another Vs. Umakant Joshi reported in 2012 (1) UD, 583 by contending that sections 35 and 19 were not considered by the Hon'ble Apex Court. We are of the clear view that the pronouncement of the judgment is to be followed and it cannot be avoided by an argument that certain provisions were not brought to the notice of the Court. It is not open to a High Court to not follow the judgment of the Hon'ble Apex Court by saying that it is per incuriam. 8. In such circumstances, we do not see any reason to interfere or grant any relief. The writ petition fails and the same is dismissed. No order as to costs.