Noor Hassan vs State Of Uttarakhand & Ors.

(Per: Hon’ble Manoj Kumar Tiwari, A.C.J.)

Writ petitioner as well as respondent no. 1 to 4 in Writ Petition (S/S) No. 3377 of 2018 have filed separate intra-court appeals challenging the judgment and order dated 15.2.2024, passed by learned Single Judge in the said writ petition. Since issues involved are common, therefore both are heard and decided together. By the impugned judgment, competent authority was directed to regularize services of writ petitioner on the post of Tube Well Operator in Irrigation Department under the Regularization Rules of 2011. A direction was also issued to the authorities to pay all service benefits to writ petitioner, which were due to him, as per the award rendered by learned Labour Court. Relevant extract of the impugned judgment is reproduced below:

There is delay of 271 days in filing Special Appeal No. 372 of 2024, preferred by State of Uttarakhand, which is not being seriously opposed. Accordingly, for the reasons indicated, delay condonation application ((IA/1/2024) is allowed. Delay is condoned.

Special Appeal No. 51 of 2024 is filed by the writ petitioner, who contends that since he was appointed as Tube Well Operator w.e.f. 5.5.1982, therefore, he is entitled for regularization under the U.P. Irrigation Department Regularization of Part Time Tube Well Operators on the post of Tube Well Operators Rules, 1996 and learned Single Judge erred in directing writ petitioner’s regularization under the Regularization Rules framed by State of Uttarakhand in the year 2011. It is contended that since the Labour Court decided the dispute raised by writ petitioner and held that he is entitled for reinstatement with continuity of service, therefore, for all practical purposes, it shall be deemed that he was continuing in service from 5.5.1982 and his regularization should date back to 1996, when the Regularization Rules were framed by Sate of U.P.

In para 11 of the impugned judgment, contention raised by the writ petitioner is considered and discussed and it was held that since the successor State of Uttarakhand has framed separate Regularization Rules in 2011 in supersession of the rules earlier framed on the subject, therefore, the rules framed by State of U.P. in the year 1996 cannot be pressed into service for claiming regularization in State of Uttarakhand, especially when separate rules were framed by State of Uttarakhand on the subject.

Learned Counsel appearing for State of Uttarakhand, however, submits that though the writ petitioner was engaged as Part-Time Tube Well Operator on 5.5.1982, however, his services were terminated on 8.8.1985; he slept over the matter for 24 long years and raised an industrial dispute only in 2009, which was referred for adjudication to Labour Court, Haridwar and the Labour Court decided the dispute in favour of writ petitioner by giving an award on 13.6.2011. He submits that Labour Court denied back wages to writ petitioner and directed only for his reinstatement with continuity of service. Learned State Counsel submits that since writ petitioner was out of employment between 1985 to 2011 and he was reinstated in service only on 21.6.2013, therefore, the direction issued by learned Single Judge to regularize him in service, as per Regularization Rules framed in the year 2011 is unsustainable. It is thus contended that regularization can be claimed only by a person who is continuously in service, while writ petitioner was not continuing in service after 1985.

We are not inclined to interfere with the judgment and order passed by learned Single Judge. The contention raised by the writ petitioner that he is entitled to regularization w.e.f. 1996 under 1996 Rules is unsustainable for the reason that in 1996, he was out of employment and had not approached any forum against termination of his service. He claimed regularization only upon his reinstatement, pursuant to award rendered by learned Labour Court on 13.6.2011. By that time, State was reorganized and State of Uttarakhand had framed separate rules for regularization in 2011, in supersession of the earlier Regularization Rules framed in 1996. Thus reliance placed upon 1996 Rules by the writ petitioner was rightly not accepted by learned Single Judge.

Even otherwise also, as per scheme of the Regularization Rules, 1996, regularization is not automatic and a selection committee has to be constituted and persons whose name figure in the list prepared by selection committee alone are to be given benefit of regularization by the appointing authority. Thus service of ad hoc/part-time employees is to be regularized only after their claim is considered by selection committee and on the recommendation of selection committee, they are to be regularized. Rule 6(1) of 1996 Rules provides that persons regularized under the said rules shall be entitled to seniority only from the date of order of their appointment after selection, in accordance with those rules. Since under 1996 Rules, regularization is not automatic but is contingent upon selection by the selection committee and writ petitioner staked claim for regularization only in the year 2013, therefore, even if the Regularization Rules of 1996 were invoked for his regularization, it would not have made any difference and regularization, if given under 1996 Rules, would also be effective only from the date of passing of regularization order. Thus whatever was due to the writ petitioner has been granted to him by learned Single Judge.

We do not find force in the grounds taken by State of Uttarakhand for challenging the judgment rendered by learned Single Judge in Writ Petition (S/S) No. 3377 of 2018. After the award rendered by learned Labour Court, whereby termination of services of Noor Hassan (writ petitioner) was declared to be illegal and it was provided that he shall be entitled to reinstatement with continuity of service, it shall be deemed that he continued to serve as Part-Time Tube Well Operator throughout. Thus the view taken by learned Single Judge that he shall be deemed to be serving before 1.11.2011 by legal fiction, in terms of the award rendered by learned Labour Court, cannot be faulted.

Thus there is no scope for interference with the impugned judgment and order. Both Special Appeals fail and are dismissed. We hope and trust that regularization order, effective from due date, in terms of the judgment rendered by learned Single Judge, shall be issued within four weeks from today, if already not issued.