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2024 DIGILAW 135 (UTT)

State of Uttarakhand v. Dinesh Singh

2024-02-28

RAKESH THAPLIYAL, RITU BAHRI

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JUDGMENT : (Ritu Bahri, CJ.) : The appellants have come-up in Appeals against the judgment of the learned Single Judge dated 13th December, 2021 whereby a bunch of six writ petitions challenging the order dated 8th December, 2017 and the order dated 13th December, 2017 passed by the Principal Secretary and the Director of Education denying grant of the Selection Grade to the respondents-writ petitioners were set aside and the writ petitions were allowed. 2. Brief facts of the case are that the respondents-writ petitioners were initially appointed as “Shiksha Bandhu” in the year 2001. Vide order dated 31st January, 2006, they were granted ad hoc status and thereafter, they were placed in the Grade Pay of Rs. 650010500 as payable to the Lecturers (English) and this fact has not been disputed by any of the parties. The respondents-writ petitioners were claiming the benefit of Selection Grade consequent to grant of ad hoc status. The Selection Grade of Rs. 7500-12000 with Grade Pay of Rs. 5400/- was to be determined in view of the parameters laid down by the Government Order No. 655/Madhyamik/2002, dated 12th July, 2002. 3. The case of the respondents-writ petitioners is that as per the above said Government Order dated 12th July, 2002, the Selection Grade was to be given if the employee has completed 10 years of satisfactory service after being placed in common cadre (Sadharan Vetanmaan). The respondents-writ petitioners were granted the benefit of Selection Grade by order dated 27th August, 2016 as per the parameters provided in Government Order dated 12th July, 2002. After grant of the Selection Grade, the same was withdrawn by the Government vide impugned orders dated 8th December, 2017 and 13th December, 2017. 4. The respondents-writ petitioners had earlier approached this Court by filing a writ petition and that writ petition was disposed of by order 28th May, 2019 directing the respondents-State to consider the claim of the petitioners for grant of the Selection Grade while deciding the representation without being influenced by the embargo which had been created by the Government Order dated 08.12.2017. The writ petitions of the respondents-writ petitioners were allowed by the learned Single Judge by observing in Paragraph-9 of the judgment dated 13.12.2021 that once the petitioners have been placed on a ‘Sadharan Vetanman’, and they were granted ad hoc status on 31st January, 2006, for all intents and purposes after serving for 10 years, the object of grant of Selection Grade as per the Government Order of 2002 has been complied with. The fact that they were regularised vide order dated 28th December, 2013 cannot be made a ground to deny them this benefit on rendering 10 years of service. Annexure-5 to Writ Petition (S/S) No. 2602 of 2019 is the Government Order dated 12th July, 2002 for grant of selection grade. As per this Circular, the Primary Teachers will be made available Selection Grade on completion of ten years’ satisfactory service in simple (original) pay-scale. 5. In the facts of the present case, the present petitioners have been treated as ‘Prathmik Shikshak’ vide order dated 31st January 2006 and this fact has not been disputed by the respondents. Once the appellants have not disputed the fact that the respondents-writ petitioners were declared as ‘Prathmik Shikshak’ (Primary Teacher) with effect from 31.01.2006, for all intents and purposes, their ten years’ service has rightly been considered and the learned single Judge has rightly allowed the writ petitions by treating the respondent-writ petitioners as ‘Prathmik Shikshak’ w.e.f. 2006. 6. The argument of the learned counsel for the State that the services of the respondents-writ petitioners were regularized on 28.12.2013 and the ten years period has to be computed from that day is liable to be rejected, as the basic condition of the policy of 2002 is that they should be Primary Teacher, and in the present case, once the respondents-writ petitioners were declared as ‘Primary Teacher’ in 2006 and they were continuously working since 2006 till they were regularized, their service of ten years has to be reckoned from 2006. 7. Learned State Counsel has referred to the judgment of the Hon’ble Apex Court in the case of Rashi Mani Mishra and others vs. State of Uttar Pradesh and others (2021) SCC OnLine 509 wherein the Hon’ble Supreme Court was examining the issue as to how the period of ad hoc service is to be counted for the purpose of seniority, etc. The Hon’ble Supreme Court was examining the case of the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 which was related to the determination of seniority of Assistant Engineers in State of Uttar Pradesh. In Paragraph 33 of the said judgment, by referring to the Rules of 1979, the Hon’ble Supreme Court has observed that if an employee was in continuous service on the post for more than three years, he/shall shall be considered for regular appointment and his/her appointment was to be done by a Selection Committee. Thus, the appointments, on regularization of their services, were made after their names were recommended by the Selection Committee constituted under sub-rule (3) of Rule 4 of 1979 Rules. Their seniority will only be from the date of order of appointment after the Selection Committee has recommended their names and they cannot claim seniority from the date of their ad hoc service. In this judgment, the Hon’ble Supreme Court was considering the case for the purpose of seniority and the regularization was made after participation before the Selection Committee. In the facts of the present case, it is not a case for fixation of seniority, but it is only a case for purpose of grant of Selection Grade as per the Government Order of 2002, which only requires that a Primary Teacher should have served for ten years and once the petitioners were declared as Primary Teachers in 2006, they got the right to claim the benefit of Selection Grade after completing 10 years’ of service. The Government Order of 2002 nowhere says that it should be given as per seniority, restricting to certain percentage of cadre. 8. Another judgment referred to by the counsel for the State is in the case of Malook Singh and others vs. State of Punjab and others (Civil Appeal Nos. 6026-6028 of 2021, decided on 28th September, 2021). Even it was a case where there was a dispute regarding fixation of seniority. The issue before the Hon’ble Supreme Court was also with regard to fixation of seniority. 6026-6028 of 2021, decided on 28th September, 2021). Even it was a case where there was a dispute regarding fixation of seniority. The issue before the Hon’ble Supreme Court was also with regard to fixation of seniority. The appellants before the Hon’ble Supreme Court were working on ad hoc basis in Punjab Civil Secretariat in 1975-76 and their services were regularised with effect from 1st April, 1977, and while regularizing, one of the conditions was that their seniority was to be fixed amongst ad hoc employees keeping in view their length of service, and if two persons are appointed on the same day, the older person was to be given seniority above the younger person. There were some candidates, who were regularly appointed after 1st of April, 1977 and they claimed seniority of their ad hoc service against regularly recruited clerks appointed after them. The regularly selected candidates could not claim seniority over and above the candidates, who were regularized prior to their date of appointment. When the matter came up before the Hon’ble Supreme Court, a large number of employees had already retired and they were receiving pensionary benefits and it was observed by the Hon’ble Supreme Court that no recoveries can be made from them. The Supreme Court did not take any steps to revise the seniority list with effect from April 1977, especially keeping in view that most the appellants had retired from the service and by disturbing the seniority, the benefit of pension will also be required to be revised. The Appeals were thereafter disposed of by the Hon’ble Supreme Court. 9. Both the above judgments, referred to by the State Counsel, do not apply to the facts of the present case, as in the present case, all conditions of the Government Order of 2002 were complied with and once the respondents-writ petitioners were declared as ‘Prathmik Teacher’ in the year 2006, and in the Government Order of 2002, there was no condition that they should be regularized, the argument of the State Counsel that the respondents-writ petitioners are not entitled for the benefit of ‘Selection Grade’ as they were not regularized on 31.01.2006 and were regularized only on 28.12.2013, is not acceptable and the same is rejected. 10. The learned Single Judge has rightly allowed the writ petitions. 10. The learned Single Judge has rightly allowed the writ petitions. The judgment passed by the learned Single Judge dated 13.12.2021 requires no interference and the same is affirmed. 11. All the aforesaid Special Appeals are dismissed. No order as to costs.