Data Ram Gaur vs Deputy Director of Agriculture

Heard Mr. Rajendra Dobhal, the learned Senior Counsel assisted by Mr. D.C.S. Rawat, the learned Counsel for the Appellant/petitioner and Mr. K.P. Upadhyay, the Additional Chief Standing Counsel for the opposite party.

The present special appeal has been filed against the order dated 10.12.2007 and 12.10.2009 passed by the learned Single Judge. The facts leading to the filing of appeal is that the Appellant/petitioner was appointed on 16.05.1990 as a junior clerk on an adhoc basis on a substantive vacancy. It transpires that the services of the petitioner was terminated by an order dated 23.03.1992 upon the joining of another person Sri R.C. Joshi. It is alleged that Sri R.C. Joshi was transferred from another place and upon his joining, the services of the Appellant on adhoc basis came to an end. The said order of termination was challenged by the petitioner by filing a writ petition before the Allahabad High Court being writ petition No. 14826 of 1992 in which an interim order dated 24th April, 1992 was passed permitting the Appellant to continue in service. As a result of the interim order, it transpires that Sri R.C. Joshi was adjusted in other post and the Appellant was allowed to continue on the substantive vacancy on an adhoc basis.

Upon the creation of the State of Uttarakhand the said writ petition was transferred to this Court which petition was renumbered as writ petition 3631 (S/S) of 2001. The said writ petition was eventually dismissed by an order dated 10.12.2007 holding that since a regular incumbent had joined the post, the Appellant could not continue any further since his appointment was only on an adhoc basis. The petitioner filed a review application which was also dismissed by an order dated 12.10.2009. The Appellant being aggrieved by the aforesaid orders has filed the present appeal.

It was alleged in the appeal that even though the writ petition was dismissed on 10.12.2007, the petitioner was allowed to continue in service till 29.09.2009. This Court by an order dated 05.11.2009 directed the Standing Counsel to receive instructions and file an affidavit. The order dated 05.11.2009 is extracted hereunder:

"Learned Standing Counsel will receive instructions and file an affidavit as to whether the Appellant continued to remain in services till 29th September, 2009 inspite of the fact that the writ petition was dismissed by judgment dated 10th December, 2007. Respondent will further intimate as to whether juniors to the Appellant are still being retained in service or not and further will intimate as to whether the substantive vacancies still exist in the department.

Pursuant to the said order the respondent has filed a counter affidavit. In paragraph 11 of the counter affidavit it has been stated that one Sateshwar Prasad Nautiyal was posted on an adhoc basis whose services were subsequently regularized on 20.08.1996. It has also been admitted in the said paragraph that substantive vacancies are still existing. The respondent is silent on the fact as to whether the Appellant continued in service till 20.09.2009 and consequently, the fact that the Appellant continued to remain in service till 29.09.2009 is admitted. The contention of the respondent in the said paragraph is that even though some posts were lying vacant, the Appellant''s services could not be regularized since his initial appointment was dehors the Rules.

We have perused the counter affidavit as well as the affidavit filed in the writ petition and we are satisfied that the petitioner worked on a substantive vacancy over a period of time from 1990 till September, 2009 and was transferred from one district to another district and during this period was given the selection grade. The fact that the petitioner continued to work on a substantive post is admitted by the respondents. The fact that Sri R.C. Joshi, who was initially transferred and joined the post on which the petitioner was initially working, was subsequently adjusted to another post. Consequently, it is apparently clear that the Appellant continued to work continuously on an adhoc basis on a substantive post. The counter affidavit of the respondent indicates that substantive vacancies are existing. Paragraph 11 of the counter affidavit in the Special Appeal indicates that one adhoc employee was also regularized even though such adhoc appointment was not made in accordance with the Rules.

In the light of the aforesaid, the Court is of the opinion that similar treatment should also be given to the Appellant and the fact that his writ petition remained pending, was no ground for the respondent not to regularize his services, especially when a substantive vacancy was existing at the relevant point of time and is also existing as on date.

This Court further finds that even though the writ petition was dismissed in the year 2007, the Appellant continued to remain in service till 29.09.2009 which fact is not disputed by the respondent. In the light of the aforesaid, we find that on account of passage of time and in view of the fact that the Appellant continued to remain in continuous service on a substantive post, his services was liable to be regularized. Since junior to the Appellant has been regularized and even though there is no prayer for regularization, we direct the authority to regularize the Appellant within three months. We accordingly, allow the appeal, set aside the order dated 10.12.2007 and 12.10.2009 passed by the learned Single Judge and allow the writ petition. The order dated 23.03.1992 terminating the services of the Appellant is also quashed. The Appellant shall be reinstated in service within two weeks from the date of production of the certified copy of the order. The respondent upon reinstating the Appellant will pass consequential orders for regularization of his service on a substantive post within three months thereafter. The Appellant will not be entitled for any salary/wages for the period 29.09.2009 till the date of his reinstatement in services. In the circumstances of the case, the parties shall bear their own cost.