Research › Search › Judgment

Uttarakhand High Court · body

2020 DIGILAW 157 (UTT)

RAJANI BHATT v. STATE OF UTTARAKHAND

2020-02-28

R.C.KHULBE, RAMESH RANGANATHAN

body2020
JUDGMENT Ramesh Ranganathan, C.J. (Oral) Heard Mr. Shakti Singh, learned Counsel for the petitioner, and Mr. C.S. Rawat, learned Chief Standing Counsel for the State, and, with their consent, this writ petition is disposed of at the stage of admission. 2. The petitioner has invoked the jurisdiction of this Court questioning the order passed by the Uttarakhand Public Services Tribunal at Dehradun in Claim Petition No.4 of 2012 dated 31.07.2019. 3. The petitioner herein had invoked the jurisdiction of the Tribunal to have the orders dated 20.4.1992 and 07.05.2012 quashed; to declare the order dated 27.03.1992 a nullity; to direct the respondents to reinstate the petitioner in service along with all consequential benefits; and to direct the respondents to consider the case of petitioner for relaxation of age in terms of the Rules in vogue for the purpose of granting relaxation in age, and allow the same to the petitioner, keeping in view the fact that she continued in service for a period of 23 years. The petitioner also sought a direction that the 23 years' service rendered by her should be treated as regular service including for extension of pensionary benefits. 4. Facts, to the limited extent necessary, are that though the petitioner was aged 34 years, (which was far beyond the then maximum age limit prescribed for appointment to the post of a Lower Division Clerk of 28 years), she was nonetheless appointed as a Lower Division Clerk, in the Pauri Garhwal Collectorate, on 4.12.1989. The third respondent sent a proposal to the fourth respondent on 28.9.1991 to grant the petitioner age relaxation. The proposal was rejected by proceedings dated 27.3.1992, and the petitioner's services were terminated, as a consequence thereof, by the third respondent on 20.4.1992. Aggrieved thereby, the petitioner filed Writ Petition No.22935 of 1992 before the Allahabad High Court and, in view of the interim order passed therein, she was continued in service as a Lower Division Clerk. After creation of the State of Uttarakhand, the said writ petition was transferred from the Allahabad High Court to the Uttarakhand High Court, and was re-numbered as Writ Petition No.6188 of 2001. This writ petition was dismissed by order dated 26.09.2008 on the ground that the petitioner had the alternative remedy of approaching the Public Services Tribunal. 5. After creation of the State of Uttarakhand, the said writ petition was transferred from the Allahabad High Court to the Uttarakhand High Court, and was re-numbered as Writ Petition No.6188 of 2001. This writ petition was dismissed by order dated 26.09.2008 on the ground that the petitioner had the alternative remedy of approaching the Public Services Tribunal. 5. Thereafter, the petitioner filed an application on 28.11.2001 to recall the order of the High Court dated 26.9.2008 and, by order dated 30.11.2011, this Court, while modifying its earlier order dated 26.9.2008, observed that, in case the petitioner filed a claim petition before the Tribunal within a period of one month from that date, the said claim petition should not be dismissed on the ground of laches. 6. Thereafter the third respondent, by order dated 07.05.2012, revived the earlier termination order dated 20.4.1992. Both these orders dated 20.4.1992 and 07.05.2012 were subjected to challenge before the Tribunal, by the petitioner herein, on several grounds. The Tribunal dismissed the claim petition, by its order dated 29.9.2015, holding that the order dated 20.4.1992, terminating the services of the petitioner, was passed by the State of Uttar Pradesh before creation of the State of Uttarakhand; and the Uttarakhand Public Services Tribunal lacked jurisdiction to entertain the claim petition. Aggrieved thereby, the petitioner filed Writ Petition No.519 of 2015 and this Court, in its order dated 25.09.2018, held that the Tribunal had jurisdiction to decide the claim petition. The order of Tribunal dated 29.9.2015 was set aside, and it was directed to hear and decide the claim petition on merits. 7. Aggrieved thereby, the petitioner filed Writ Petition No.519 of 2015 and this Court, in its order dated 25.09.2018, held that the Tribunal had jurisdiction to decide the claim petition. The order of Tribunal dated 29.9.2015 was set aside, and it was directed to hear and decide the claim petition on merits. 7. The Tribunal, thereafter, heard the matter and dismissed the claim petition, by the order under appeal, holding that the petitioner did not fulfill the stipulated age criteria; both the 2011 Regularization Rules and Rule 4(2) of the 2013 Regularization Rules prescribed a similar condition; in order to be considered for regularization, a temporary employee must fulfill the requirement of Rule 4 which requires the eligibility criteria of age also to be fulfilled; the petitioner did not satisfy the maximum age criteria, of being less than 28 years, when she entitled service; the petitioner was neither entitled to be considered for regularization under the Rules nor could she be considered as per the length of her service which she had completed as ‘litigious employment'; and she was, therefore, not entitled to be extended the benefit of regularization of her services. Aggrieved thereby, the present writ petition. 8. While fairly stating that the petitioner was aged 34 years when she was initially engaged as a Lower Division Clerk on a temporary basis in 1989, Mr. Shakti Singh, learned Counsel for the petitioner, would submit that, in terms of Rule 29 of the Uttar Pradesh District Officers (Collectorate) Ministerial Service Rules, 1980, the State Government has been conferred the power to relax the upper age criteria; the officials had recommended that the petitioner be regularised in service, after giving her relaxation of the prescribed upper age limit; the petitioner had worked continuously ever since 1989 till the order dated 7.5.2012 was passed reviving the earlier order of termination dated 20.4.1992; and her claim for regularization should be considered in accordance with the Rules, considering her continuous service of more than three decades, after giving her the benefit of the relaxation of the prescribed upper age limit. 9. It is not in dispute that the petitioner was aged more than 34 years when she was initially appointment as a Lower Division Clerk on a temporary basis. 9. It is not in dispute that the petitioner was aged more than 34 years when she was initially appointment as a Lower Division Clerk on a temporary basis. A little more than 2 years thereafter, the District Magistrate, Pauri Garhwal had submitted a proposal to the Secretary, Board of Revenue on 28.9.1991 to grant the petitioner the benefit of age relaxation in terms of Rule 29 of the 1980 Rules. The Board of Revenue had rejected the proposal, for relaxation of age, by its order dated 27.3.1992 and, by a subsequent order dated 20.4.1992, her services were terminated after giving her one month's salary in accordance with the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (for short ‘the 1975 Rules'). 10. Rule 3(1) of the 1975 Rules stipulates that the services of a government servant, in temporary services, shall be liable to be terminated at any time by notice in writing given either by the government servant to the appointing authority or by the appointing authority to the government servant. Rule 3(2) stipulates that the period of notice shall be of one month. Termination of the services of the petitioner as a temporary employee, by proceedings dated 20.4.1992, was in the exercise of the powers conferred by Rules 3(1) and (2) of the 1975 Rules. The petitioner continued to remain in service only because of the interim order passed by the Allahabad High Court in Writ Petition No.22935 of 1992. The said interim order continued to remain in force, even after the said writ petition was transferred to the Uttarakhand High Court and was re-numbered as Writ Petition No.6188 of 2001, till it was eventually dismissed on 26.09.2008 on the ground that an alternative remedy of approaching the Tribunal was available to the petitioner. 11. Though she did not have the benefit of an interim order, after the writ petition was dismissed on 26.9.2008, the respondents did not terminate her services till after her application, seeking recall of the order dated 26.9.2008, was dismissed by the High Court by its order dated 30.11.2011. Thereafter, by order dated 7.5.2012, the third respondent revived the earlier termination order dated 20.4.1992, and though the said orders dated 20.4.1992 and 7.5.2012 were subjected to challenge before the Tribunal, no interim order was passed for the petitioner to be continued in service. Thereafter, by order dated 7.5.2012, the third respondent revived the earlier termination order dated 20.4.1992, and though the said orders dated 20.4.1992 and 7.5.2012 were subjected to challenge before the Tribunal, no interim order was passed for the petitioner to be continued in service. The petitioner ceased to remain in service, as a temporary government servant, after the order dated 7.5.2012 was passed. 12. The interim order passed by the Allahabad High Court in Writ Petition No.22935 of 1992 would not survive dismissal of the Writ petition itself on 26.09.2008, and, while the respondents may not be justified in recovering the salary paid to the petitioner, as she had discharged her duties during this period, the service rendered by her as a temporary Lower Division Clerk, under the protection of an interim order of the High Court, cannot be treated as temporary service, more so as the respondents had terminated her services by order dated 20.4.1992 which order was never interdicted either by the High Court or by the Public Service Tribunal. 13. As noted hereinabove, the order dated 20.4.1992 terminating the services of the petitioner, was passed because her initial appointment as a Lower Division Clerk was itself contrary to the Rules which prescribed an upper age limit of 28 years, whereas the petitioner was aged 34 years at the time of her initial appointment. 14. With regards the petitioner's claim that she ought to have been given the benefit of age relaxation, the Tribunal referred to Rule 29 of the 1980 Rules which confers powers on the State Government, if it is satisfied that the operation of any Rule regulating the service conditions of a person appointed to the service, causes undue hardship in a particular case, it may, notwithstanding anything contained in the Rules applicable to her case, by order, dispense with or relax the requirements of that Rule to such extent, and subject to such conditions, as it may consider necessary for dealing with the case in a just and equitable manner. 15. Rule 29 is an enabling provision and confers discretion on the State Government to relax the operation of any Rule regulating the service conditions of any employee. The power of relaxation, conferred on the State Government under Rule 29, is hedged by certain conditions, the fulfillment of which alone would justify exercise of discretion to relax the rigor of the Rules. The power of relaxation, conferred on the State Government under Rule 29, is hedged by certain conditions, the fulfillment of which alone would justify exercise of discretion to relax the rigor of the Rules. As the power to relax the operation of any Rule is discretionary, this Court would, ordinarily, not issue a mandamus to the authorities concerned to exercise its discretion in a particular manner. 16. In the present case, despite a specific proposal made by the District Magistrate on 28.9.1991 to grant the benefit of relaxation of age to the petitioner, the Board of Revenue had, by its order dated 27.3.1992, rejected the said proposal of the District Collector. 17. In the order impugned in this writ petition, the Tribunal relied on the judgment of the Supreme Court in Secretary, State of Karnataka v. Uma Devi & others: (2006) 4 SCC 1 , and held that, in order to claim the benefit of regularization of her services, an employee should have put in 10 years of service in a duly sanctioned post, but without the intervention of the orders of Courts or Tribunals. If the service rendered by the petitioner, under the protection of the interim order of the Allahabad High Court, is excluded, she would then have put in a little less than three years of service when her services were terminated by order dated 20.4.1992. In view of the law declared by the Supreme Court in Uma Devi, the Tribunal was justified in holding that her services could not be regularized. 18. The Tribunal also held that, in terms of Rule 4 of the Uttranchal Regularization or Ad-hoc Appointments (on posts outside the purview of the Public Service Commission) Rules, 2002, a person should have fulfilled all the eligibility criteria, for entry into the service, to be considered for regularization; the petitioner, admittedly, did not fulfill the criteria of falling below the maximum upper age limit; and a similar provision also existed in Rule 4 of the 2011 Regularization Rules. Consequently, the Tribunal held, in our view rightly so, that the services of the petitioner could not have been regularized. 19. The petitioner has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order passed by the Tribunal dated 31.7.2019. The scope of interference in certiorari proceedings, with the orders of Tribunals, is extremely limited. Consequently, the Tribunal held, in our view rightly so, that the services of the petitioner could not have been regularized. 19. The petitioner has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order passed by the Tribunal dated 31.7.2019. The scope of interference in certiorari proceedings, with the orders of Tribunals, is extremely limited. A writ of certiorari can be issued for correcting errors of jurisdiction, such as in cases where the order is passed without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction or where, in exercise of the jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly. The jurisdiction to issue a writ of certiorari is supervisory and not appellate. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The adequacy or sufficiency of evidence, and the inference of fact to be drawn therefrom, cannot be agitated in certiorari proceedings (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477 ) as it is in the province of a court of appeal. 20. If the tribunal has erroneously refused to admit admissible and material evidence, or has erroneously admitted inadmissible evidence, or if a finding of fact is based on no evidence, it would be an error of law which can be corrected by a writ of certiorari. Where the conclusion of law by the Tribunal is based on an obvious mis-interpretation of the relevant statutory provisions, or in ignorance of it or even in disregard of it or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Whether or not an error is an error of law, and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case, and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened. (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477 ). 21. (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477 ). 21. Unlike an appellate authority which can re-appreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not substitute its views for that of the Tribunal, nor would it re-appreciate the evidence on record to arrive at a conclusion different from that of the Tribunal whose order is impugned before it. If two views are possible, and the Tribunal has taken one of the possible views, the High Court would not interfere, in the exercise of its certiorari jurisdiction, even if it were to be satisfied that the other possible view, canvassed before it, is more attractive. A finding of fact reached, on the appreciation of evidence, cannot be reopened or questioned in writ proceedings save a finding of fact which is either perverse or is based on no evidence. If a provision is reasonably capable of two constructions, and one construction has been adopted by the authority, its conclusion may not always be open to correction in writ proceedings. (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477 ). 22. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior tribunals. A writ can similarly be issued where, in the exercise of the jurisdiction conferred on it, the tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; and Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477 ). A writ of certiorari can be issued in the case of illegal exercise of jurisdiction, and also to correct errors of law apparent on the face of the record, even though they do not go to jurisdiction. It is only errors of law apparent on the face of the record, and not errors of fact though they may be apparent on the face of the record, which can be corrected, (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Anr. : AIR 1961 SC 970 ; R. Vs. Northumberland Compensation Appeal Tribunal : (1952) 1 KB 338; and Nagendra Nath Bose Vs.Commr. Ltd. Vs. S.B. Bhatt and Anr. : AIR 1961 SC 970 ; R. Vs. Northumberland Compensation Appeal Tribunal : (1952) 1 KB 338; and Nagendra Nath Bose Vs.Commr. of Hills Division : AIR 1958 SC 398 ), and not every error either of law or fact which can be corrected by a Court of appeal or revision. (T. Prem Sagar Vs.The Standard Vacuum Oil Company Madras and Ors. : AIR 1965 SC 111 ; Bachan Singh and others Vs. Gaurishankar Agarwal and Others : (1972) 4 SCC 257 ; and Nagendra Nath Bose Vs. Commr. of Hills Division : AIR 1958 SC 398 ). 23. Further an error of law, which can be corrected by a writ of certiorari, must be self-evident. It should not need an elaborate examination of the record (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Anr. : AIR 1961 SC 970 ), or require a detailed examination or an elaborate argument to establish it (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Ors. : AIR 1955 SC 233 ; Batuk K. Vyas Vs. Surat Borough Municipality and Ors. : AIR 1953 Bom 133 ). An error cannot be said to be apparent if one has to travel beyond the record to see whether the judgment is correct or not. It is an error which strikes on the mere looking, and does not need a long-drawn out process of reasoning on points where there may conceivably be two opinions. Such an error would not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd. : (2010) 13 SCC 336 )." 24. It is only if the order of the Tribunal suffers from an error apparent would interference be justified. We find no such infirmity in the impugned order passed by the Tribunal. The writ petition fails and is, accordingly, dismissed. No costs.