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2018 DIGILAW 331 (UTT)

Mahipal v. State of Uttarakhand

2018-06-19

SHARAD KUMAR SHARMA

body2018
JUDGMENT : Sharad Kumar Sharma, J. 1. These are a bunch of three writ petitions, almost filed for agitating an identical cause by the petitioners, who claimed themselves to be working as Safai Karamchari with various Municipalities irrespective of there being a different date of their appointment, on contractual basis. In these writ petitions, the fact remains that as per the contentions of the petitioners, the petitioners had been working regularly for sufficient long period as Safai Karamchari and, as such, they were entitled to be considered for regularization so that they may also receive all the service benefits which is otherwise paid to the regular incumbent. The case of the petitioners is also that they hold the qualification which is supposed to be required by a regular incumbent and, after their appointment on contractual basis, as against their respective date of appointment, they have been discharging the equivalent duties as performed by Safai Karamchari appointed on regular basis, rather the service conditions which they have to discharge even though being contractual employees are similar as of regular incumbent. 2. Case of the petitioners is that the State had issued a Government Order on 22nd November, 2016. In the said Government Order, the Secretary to the State, while addressing it to the Directorate, Local Bodies, had directed that total 859 posts of Safai Karamchari/Paryavaran Mitra are working on contractual or temporary basis required to be regularized based on a one time settlement principle. The matter to which these writ petitions relate to is in relation to Nagar Palika, Muni-ki-reti, Dhaalwala, Rishikesh, District Tehri Garhwal. 3. It is the contention of the learned counsel for the petitioners in the writ petitions that as against total post of 859 of Safai Karmchari, which were supposed to be regularized on the basis of one time settlement on pro-rata basis and, on basis of that computation thereto, seven posts fell within the share of Nagar Palika, Muni-ki-reti, hence regularization of the petitioners ought to have been proceeded with based on the directives of the Government Order dated 22nd November, 2016. 4. On the basis of the directions of the Court’s order dated 22.11.2016, the District Magistrate constituted a Selection Committee, which considered the testimonials of the petitioners, their service records, attendance register and recommendation for regularization, which was ratified by the Board of Municipalities. 5. 4. On the basis of the directions of the Court’s order dated 22.11.2016, the District Magistrate constituted a Selection Committee, which considered the testimonials of the petitioners, their service records, attendance register and recommendation for regularization, which was ratified by the Board of Municipalities. 5. For the purposes of regularizing the services as against seven posts allocated to the Municipality of respondent, based on the Government Order dated 22nd November, 2016, the Municipal Board rather had also taken a decision by the Resolution (undated), Annexure-2 to the writ petition, whereby, in principle, the Municipal Board has expressed its willingness to the effect that the petitioners have been working on a contractual basis as against their respective date of appointment, as mentioned in 5th column, Annexure No. 2 to the writ petition, however, further steps for granting benefit of regularization, in pursuance to the Resolution of the Municipal Board could not be taken in the light of the directives which has been issued by the Additional Secretary, State of Uttarakhand, by virtue of the Government Order No. 572/IV (1)/2017-01 (32)/14 T.C. dated 10th July, 2017. The only apprehension, which has been expressed by the Additional Secretary for not proceeding to regularize the services of 859 posts which were directed to be regularized as one time settlement based on the Government Order dated 22nd November, 2016 was the reason assigned in para 2 of the said order. Para 2 of the same is quoted hereunder :- ^^2&bl lEcU/k esa voxr djkuk gS fd ek0 mRrjk[k.M mPp U;k;ky;] uSuhrky }kjk fjV ;kfpdk la&154 ¼,l@,l½ 2017 Jh fgek’kqa tsk’kh ,ao vU; cuke mRrjk[k.M jkT; o vU; eas fnuakd 24-1-2017 }kjk fofu;erhdj.k fu;ekoyh ij jksd yxk;h xk;h gS vr% izns’k ds LFkkuh; fudk;ska esa dk;Zr dkfEkZdksa ds fofu;erhdj.k dh dk;Zokgh fd;k tkuk fof/kd –f”Vdks.k ls mfpr ugha gSA** 6. This High Court by virtue of the order dated 24th January, 2017, as passed in Writ Petition No. 154 (S/S) of 2007, Himanshu Joshi and others Vs. State of Uttarakhand and others, the Coordinate Bench of this Court has stayed the effect and operation of the Regularization Rules of 2013. It was this order, passed by the Additional Secretary, which was creating an impediment for the Directorate as well as the Municipal Board to proceed with their Resolution recommending the regularization of the petitioners and consequential order of regularization. 7. It was this order, passed by the Additional Secretary, which was creating an impediment for the Directorate as well as the Municipal Board to proceed with their Resolution recommending the regularization of the petitioners and consequential order of regularization. 7. Faced with the situation, the petitioners have filed the present writ petition for the following reliefs :- “(i) Issue a writ, order or direction in the nature of Mandamus directing respondents to forthwith regularize the services of the petitioners on the post of ‘Paryanvaran Mitra/Safai Karamchari’ pursuant to Regularization Rules, and also considering one time settlement for regular posting as approved by the State Government (vide Government order dated 22-11-2016 and 23-11-2016 annexed as Annexure No.1) petitioners further prays for a direction to the respondents to grant Minimum of Regular Pay Scale along with Dearness Allowances of the post of ‘Paryanvaran Mitra/Safai Karamchari’ on the principle of ‘equal pay for equal work’ (revised from time to time). (ii) Issue any writ or order which this Hon’ble Court may deem fit in the interest of justice. (iii) Award cost of the petition in favour of the petitioners.” 8. At the stage of admission, this Court had called for a counter affidavit from the respondents. In response thereto, the respondent No. 3 Municipal Board has already filed the counter affidavit and supported their resolution Annexure-2 to the writ petition. But there is no counter affidavit filed by the respondent Nos. 1 and 2. This writ petition has been taken up consistently since Friday and even on previous dates as apparent from order-sheet but still the counter at the behest of respondent Nos. 1 and 2 has not been filed. Thus, this Court has got no option except to proceed on the basis of whatever material has been provided by the respondents before this Court. 9. In the counter affidavit, thus, filed by the respondent No. 3, they have placed on record the judgment of Coordinate Bench of this Court dated 17th April, 2018, in Writ Petition (S/S) No. 154 of 2017, Himanshu Joshi and others Vs. State of Uttarakhand and others along with Writ Petition (S/S) No. 155 of 2017, Charu Bhatt & another Vs. State of Uttarakhand and others. State of Uttarakhand and others along with Writ Petition (S/S) No. 155 of 2017, Charu Bhatt & another Vs. State of Uttarakhand and others. As a consequence of the said judgment thus rendered, the writ petitions have been allowed and as a consequent thereto as final adjudication of writ petition, the interim order dated 24.01.2017, which was passed by the Coordinate Bench of this Court in Writ Petition No. 154 of 2017, which was basis of the order dated 10.07.2017, passed by Additional Secretary, which now stands adjudicated by the judgment of this Court and on principle of merger as stay order dated 24.01.2017, stood merged with final judgment dated 17.04.2018, had become non-est, so are the reason of the order dated 10.07.2017, passed by the Additional Secretary, Urban Development. 10. Hence for the reasons given above, as a matter of fact, based on the principle of merger since the writ petition has been rendered with finality by this Court, the interim order dated 24th January, 2017 which was constituted the basis of passing the order dated 10th July, 2017, becomes nonexistent. Hence, the impediment which was created in not considering the claim of regularization of the petitioners based on the Government Order dated 27th November, 2016 was no more existing. Furthermore, the argument of learned counsel for the petitioners that in view of the order passed by this Court dated 20.11.2017 by Hon’ble Justice U.C. Dhyani, which is Annexure No.-2 to the supplementary affidavit, this order dated 24.012017, has clarified the fact that the interim order as passed by this Court in Writ Petition No. 154 of 2017, was in relation to the regularization Rules of 2013 and not in relation to the Rules, 2016 and hence, in view of the clarification given by the order passed by the Coordinate Bench of this Court as annexed as Annexure No-2 to the supplementary affidavit, the embargo which was derived for the purposes of passing the order dated 10th July, 2017 becomes non-est and as a matter of fact now as on date there exists no reasons as to why the claim of the petitioners for regularization as one time arrangement in pursuance to the Government Order dated 22nd November, 2016 is not to be considered. 11. In that view of the matter and for the reasons assigned above, the writ petition is allowed. 11. In that view of the matter and for the reasons assigned above, the writ petition is allowed. A writ of mandamus is issued to the respondent Nos. 2 and 3 that after considering the subsequent developments which has already been considered above, consider the case of the petitioners for regularization under the Government Order dated 22nd November, 2016 and taking into consideration the recommendation made by the Municipal Board which are minutes of Selection Committee dated 07.04.2017, as constituted by the District Magistrate vide its resolution (undated annexure). The entire exercise of passing the order or regularization is required to be taken within a period of six weeks from the date of presentation of the certified copy of this judgment. 12. Subject to the above observations, the writ petitions stand allowed. However, there would be no order as to costs. 13. Let copy of the judgment be placed in connected writ petitions.