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Uttarakhand High Court · body

2018 DIGILAW 42 (UTT)

State of Uttarakhand v. Kunwar Singh Gusain

2018-02-14

ALOK SINGH, K.M.JOSEPH

body2018
JUDGMENT : K.M. JOSEPH, J. There is delay of 133 days in filing the appeal. Having heard the learned counsel for the parties, we are of the view that the delay should be condoned. Accordingly, the delay will stand condoned and the Application for condonation of delay will stand allowed. 2. Appellants are the respondents in the writ petition. The reliefs, as we notice in the writ petition after amendment, are as follows: “I. Issue a writ order or direction in nature of mandamus commanding the respondent No. 2 reinstate the petitioner in Water Shed Management on the post of Junior Clerk retrospectively from the date they alleged to have transferred the petitioner to the forest department. II. Issue a writ order or direction in nature of mandamus commanding the respondent no. 2 to make payment of arrears of deference of salary to the petitioner payable as junior clerk and the amount paid to the petitioner by the forest department as Class-IV employee. 2A Issue a writ order or direction in nature of certiorari and quashing the order No. 2571/29-3(3) dated Muni-Ki-Reti 1.4.2009 passed by Conservator of Forest Bhagirathi Circle Muni-ki-reti Tehri Garhwal. 2B Issue a writ order or direction in nature of mandamus commanding the respondent no. 2 to make payment of salary of Junior Clerk (Class-III) to the petitioner during the period he was on medical leave and was not allowed to join duty after submitting his medical and fitness certificate and was not allowed to resume his duties to the date he was permitted to join as class-IV employee in the forest department. 2C Issue a writ order or direction in nature of certiorari and quashing the order No. Kha.2697/29-3 Dehradun dated 30 June 2013 passed by The Principal Chief Conservator of Forest State of Uttarakhand, Dehradun.” 3. The judgment passed by the learned Single Judge reads as follows: “Mr. Sharad Sharma, Sr. Advocate assisted by Mr. H.C. Joshi, Advocate for the petitioner. Mr. BPS Mer, Brief Holder, for the State. On the oral prayer of the petitioner, State of U.P. through Secretary (Agriculture) is added as party respondent. Service of notice was waived by Ms. Beena Pandey, learned Addl. CSC appearing for the State of U.P. Learned advocates were heard at length. Petitioner was appointed as a Class IV employee on regular basis on 1.7.1982. He was deployed in a Water Shed Project on 19.8.1984. Service of notice was waived by Ms. Beena Pandey, learned Addl. CSC appearing for the State of U.P. Learned advocates were heard at length. Petitioner was appointed as a Class IV employee on regular basis on 1.7.1982. He was deployed in a Water Shed Project on 19.8.1984. Petitioner was promoted to the post of Junior Clerk on 19.2.1986. Thereafter, the petitioner became seriously ill w.e.f. 26.3.1993 till 7.10.1993. He applied for the medical leave. Petitioner was not allowed to join the Water Shed Project after availing the medical leave. Thereafter, the petitioner was ultimately permitted to join his duties in the Forest Department on 25.4.1995 on a Class IV post. Petitioner also made a representation seeking redressal of his grievances that he should have been permitted to join his duties in the Water Shed Project as a Junior Clerk and not as a Class IV employee in the Forest Department. The representation was rejected by the competent authority on 1.4.2009. The fact of the matter is that the petitioner joined his duties in the Forest Department. His services were deployed in the Water Shed Project. He, on the basis of his experience and qualification, was promoted as a Junior Clerk on 19.2.1986. He also continuously discharged the duties of the Junior Clerk up to 26.3.1993. Thereafter, as noticed hereinabove, he fell sick and went on medical leave between 26.3.93 to 7.10.93. Since, the petitioner was deployed in the Water Shed Project, he should have been permitted to join his post immediately in the month of October, 1993 itself. Petitioner remained in limbo between 7.10.1993 till 25.4.1995. He was permitted to join his duties in the forest department, that too, against a Class IV post. Petitioner was promoted as a Junior Clerk on regular basis. His services could not be obliterated with effect from his date of promotion i.e. 19.2.1986 till 25.4.1995. Petitioner should have been permitted to join his duties as a Junior Clerk instead of a Class IV post. Thereafter, though the petitioner was permitted to join his duties as a Class IV employee instead of a Junior Clerk in the forest department. But the fact of the matter is that as per records, the work of Junior Clerk was extracted from the petitioner even in the forest department. Thereafter, though the petitioner was permitted to join his duties as a Class IV employee instead of a Junior Clerk in the forest department. But the fact of the matter is that as per records, the work of Junior Clerk was extracted from the petitioner even in the forest department. Petitioner has claimed salary w.e.f. 26.3.1993 to 7.10.1993 and has sought appointment in the Forest Department as a Junior Clerk w.e.f. 25.4.1995. The action of the respondents in not permitting the petitioner to join as a Junior Clerk on 25.4.1995 is arbitrary. He has worked w.e.f. 1986 as a Junior Clerk. The designation of the petitioner should not have been lowered, more particularly, when the Water Shed Project was already an extended limb of the Forest Department. Petitioner has never opted voluntarily but he was deployed in the Water Shed Project. Accordingly, the writ petition is allowed. The respondents are directed to release pension to the petitioner by counting his services to the post of Junior Clerk with effect from his initial promotion i.e. 19.2.1986 and also to pay him the salary for the post of Junior Clerk w.e.f. 7.10.1993 till the date of his retirement. All pending applications stand disposed of accordingly.” 4. We have heard Mr. S.S. Chauhan, learned Deputy Advocate General for the State / appellants and Mr. Hem Chandra Joshi, learned counsel appearing for the respondent / writ petitioner. 5. The case as we notice from the pleadings would, inter alia, include the following stand taken by the appellants: The writ petitioner was appointed as a Class IV employee and he was sent on deputation for a project in the Water Shed Department. The parent department of the writ petitioner is the Forest Department. Upon the expiry of the period of the project, the writ petitioner was repatriated back. It appears that, by Annexure No. 8 to the writ petition, the writ petitioner was given promotion as Junior Clerk. It is on the said basis that the entire claim was raised before the learned Single Judge. 6. The learned Deputy Advocate General would, however, point out that the order of promotion would show that it is only a temporary order. It appears that, in the order, however, it is mentioned that the writ petitioner can be sent back on his original post at any time. 6. The learned Deputy Advocate General would, however, point out that the order of promotion would show that it is only a temporary order. It appears that, in the order, however, it is mentioned that the writ petitioner can be sent back on his original post at any time. In fact, the writ petitioner would appear to have filed a writ petition in the Allahabad High Court and the stand of the appellants appears to have been that the writ petitioner was sent on deputation and the project has come to an end. The said writ petition, in fact, was disposed of by directing the department to consider the case of the writ petitioner. 7. We notice that, in fact, after the amendment, the writ petitioner has challenged two orders passed by the officers. There is no reference to the same in the impugned judgment. The orders impugned have not been quashed and, yet, relief has been granted in the manner, which is indicated in the judgment. We would think that various aspects, which have been pointed out in the pleadings, have not been adverted to or considered by the learned Single Judge. We would think that the interest of justice requires that the matter must be remitted back to the learned Single Judge after setting aside the judgment. 8. Accordingly, we set aside the judgment passed by the learned Single Judge; remit the matter back; and further direct that the writ petition will stand listed before the learned Single Judge on 7th March, 2018 in the Daily Cause List. Having regard to the fact that the writ petition is of the year 2009, we request the learned Single Judge to dispose of the matter at the earliest and, if possible, within a period of one month from 7th March, 2018. We make it clear that we have not expressed any view regarding the merits of the matter. The appeal is, accordingly, disposed of.