State Of Uttarakhand And Others vs Daya Shankar Badhani

Raghvendra Singh Chauhan, CJ

Aggrieved by the order dated 18.12.2020, passed by the learned Single Judge, in Writ Petition (S/S) No. 444 of 2018, the State has preferred the present Special Appeal. By the said order, the learned Single Judge had directed the respondent-State to open the sealed envelope, and to consider the case of the petitioner for regularization.

For the sake of convenience, the parties shall be referred to as arrayed in the Writ Petition.

Briefly stated, the facts of the case are that in 2007, the Chief Engineer, Kumaon Mandal, PWD, had issued an advertisement and invited applications from eligible candidates, who could be appointed, on contractual basis, for the post of Junior Engineer. Since the petitioner was eligible for the post of Junior Engineer (Civil), he applied for the same. The petitioner was selected by the Selection Committee on 24.03.2008. On the basis of the recommendation of the Selection Committee, the petitioner was appointed on the post of Junior Engineer (Civil), but on contractual basis.

In order to regularize the services of the employees appointed on daily wages, work-charge, and ad-hoc, the Government of Uttarakhand framed the Daily Wagers, Work Charge, Contract, Fixed Pay, Part-Time and Ad-hoc Employees Regularisation Rules, 2013 ("the Rules", for short). According to Rule 4 of the Rules, if a person is appointed on daily-wage, work-charge, contract, part-time, or on ad-hoc basis, and has completed five years of service, then he/she would be entitled for regularization under the Rules.

In the year 2016, the respondent-Department decided to regularize the services of the Junior Engineer (Civil), who were working on contractual basis. For the said purpose, the Chief Engineer, HOD, PWD, the respondent no. 2, prepared a seniority list, as mandated under Rule 6 of the Rules. The petitioner's name was shown at Serial No. 7 of the said seniority list. On 18.10.2016, the Selection Committee was constituted. On 27.10.2016, the Selection Committee sent its recommendation to the Department. On the basis of the recommendations, on 28.10.2016, the services of thirty-three Junior Engineers were regularized. However, the petitioner's name was not included in the said list. Therefore, the petitioner tried to discover the reason as to why his services were not regularized. He was informed that since he was facing a departmental enquiry, his candidacy was kept in a sealed envelope till the enquiry is completed. But, despite the fact that the petitioner has been exonerated in the departmental enquiry, still his services were not regularized. Therefore, the petitioner filed the Writ Petition before the learned Single Judge. As mentioned hereinabove, the learned Single Judge directed the respondents to open the sealed cover envelope, and to consider the case of the petitioner for regularization.

Mr. Pradeep Joshi, the learned Additional Chief Standing Counsel for the State of Uttarakhand, submits that the State was justified in keeping the candidacy of the petitioner in a sealed cover envelope as, at the relevant time, he was facing a departmental enquiry. Hence, his case for regularization could not be considered. Moreover, the Rules have been stayed by this Court on 11.02.2019. Therefore, presently his case cannot be considered under the said Rules.

On the other hand, Mr. Yogesh Pacholia, the learned counsel for the petitioner, submits that the Rules of 2013 were holding the field on the date the cases of the petitioner's colleagues and the case of the petitioner were considered by the Selection Committee. It is only because he was facing a departmental enquiry that his case was kept in a sealed cover envelope. However, subsequently, the petitioner has been exonerated in the departmental enquiry. Therefore, the learned Single Judge was justified in directing the respondents to open the sealed cover envelope, and to consider the petitioner's case. Therefore, the learned counsel for the petitioner has supported the impugned order passed by the learned Single Judge.

Heard the learned counsel for the parties, and perused the impugned order.

It is, indeed, a settled principle of law that the candidacy of a person needs to be considered in accordance with the law that was prevalent on the date the case was to be considered.

Admittedly, on 28.10.2016, the Rules of 2013 were in effect. On the said date the said Rules had not been stayed by this Court. Therefore, naturally the petitioner's case would have to be considered. Since the petitioner's case continues to be in a sealed cover envelope, the learned Single Judge is legally justified in directing the respondents to open the said envelope, and to consider the petitioner's case.

Moreover, the stay granted by this Court cannot have a retrospective effect. Admittedly, the Rules were stayed by this Court on 11.02.2019. Therefore, the said stay cannot have a retrospective effect.

Lastly, since the benefit of the Rules of 2013 was given to the other thirty-three Junior Engineers, all of whom are colleagues of the petitioner, the petitioner could not be denied the benefit of the said Rules. After all, parity has to be kept between the petitioner and his other colleagues. Thus, this Court does not find any illegality or perversity in the order dated 18.12.2020 passed by the learned Single Judge.

Accordingly, the impugned order dated 10.01.2020, passed by the respondent no. 2, is, hereby, set-aside. The order passed by the learned Single Judge is, hereby, confirmed.

For the reasons stated above, this Court does not find any merit in the present Special Appeal. It is, hereby, dismissed.

No order as to costs.