Suresh Kumar & others vs State of Uttarakhand and others

V.K. BIST, J.

Petitioners have approached this Court for seeking following reliefs:

“(i) Issue a writ, order or direction in the nature of certiorari to quash the order dated 04.10.2017 passed by respondent no.1.

ii)Â Declare the omission on the part of respondent no.1 in creating the post of Safai Karmchari for Nagar Palika Bazpur, as unjust and illegal.

iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay minimum of pay scale with allowances admissible

for the post of Safai Karmchari to the petitioners, as is being paid to other daily wage employees of Nagar Palika Parishad Bazpur.

iv) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.1 to create inadequate number of posts for regularization

of eligible Safai Karmchari serving on contract in Nagar Palika Bazpur.

v) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pass appropriate orders for regularization of the

petitioners, on the post of Safai Karmchari, from due date, with all consequential benefits.â€​

Earlier, petitioners filed Writ Petition (S/S) No.744 of 2017, in which following order was passed:

“Accordingly, the writ petition is disposed of with the direction to the State Government/ respondents to take a final decision in view of the

recommendation made by respondent no.3 to regularize the services of the petitioners after creation of equivalent posts, within a period of ten weeks

from today.â€​

In compliance of the said order, the respondent no.1, vide order dated 04.10.2017, rejected the claim of the petitioners on the ground that the

petitioners do not fulfil the condition of 05 years continuous service as petitioners were on contract basis. Another reason was that a stay order has

been passed in Writ Petition (S/S) No.154 of 2017. In view of these reasons, no justification was found for the creation of post and regularization of

the petitioners.

4.` Facts, in brief, are that in various Nagar Palika of the State, sweepers were engaged on daily wage basis in excess of sanctioned posts. Petitioners

were also engaged on contract as sweeper by Nagar Palika Parishad, Bazpur (respondent no.2). The State Government was contemplating to create

posts of sweeper so that one time settlement be made and such employees be regularized. On 25.02.2016, the Additional Secretary of the State

Government sought information from Urban Development Department regarding the persons working on the post of Sweeper in the various Nagar

Palika Parishad. Thereafter, respondent no.2 issued a circular asking Director, Urban Development, Directorate to furnish desired information, who, in

turn, issued direction to all local bodies to send the details. The respondent no.3 sent reply on 29.02.2016 and furnished information in the proforma

given in the letter dated 25.02.2016. However, in the 5th column incorrect information was given regarding number of employees, who have

completed five years service as on 30.12.2013. Instead of mentioning 20 in 5th column, 0 was mentioned, meaning thereby, that there is no one eligible

for regularization. In other words, petitioners were erroneously treated as outsourced employee. Respondent no.3 when realized his mistake, then

submitted correct information with his letter dated 18.06.2016. In his letter, respondent no.3 admitted that there are 20 contract Safai Karamchari

working since 09.06.2004. Corrected information in the prescribed proforma was also submitted with the said letter. It is a case of the petitioner that

State Government created posts of sweeper in other Nagar Palika Parishad, but no post was created in Nagar Palika Parishad, Bazpur. Thereafter,

Writ Petition (S/S) No.744 of 2017 was filed and order, as stated above, was passed.

Learned counsel for respondent no.3 admitted the fact that, due to mistake, incorrect information was sent by respondent no.3, but subsequently

correct information was sent. He admitted that on that day 20 contract Safai Karamcharis were working with respondent no.3.

Learned counsel for the petitioners submitted that information regarding daily wage employees was sought by the government for creating posts

and for making regularization of such employees as one time settlement. He further submitted that the respondents, while deciding the representation

on 04.10.2017, did not consider the fact that demand for creation of post of Safai Karamchari (Sweeper) could not be rejected, as petitioners were

working for many years. He submitted that, though, initially incorrect information was sent, but subsequently another letter dated 18.06.2016 was

written by respondent no.3 correcting the said mistake and informing the State Government that 20 contract employees are working in the Nagar

Palika Parishad, Bazpur. He submitted that, while sanctioning posts, State Government should have considered the subsequent letter.

I have considered the submission of learned counsel for the parties. In the present case, it is not clear whether the respondent no.1, while deciding

the representation, considered the subsequent letter written by respondent no.3, in which correct information was sent. It is also not clear that case of

the petitioners is identical to the case of employees working in other Nagar Palika Parishad, whose servies were regularized. It is a fact that

petitioners were not at fault. Mistake was, in fact, committed by Nagar Palika Parishad, Bazpur. But, subsequently another letter was sent by

respondent no.3 correcting the mistake. Same should have been considered. The respondent no.1 should have considered whether petitioners’

case was identical to those whose services were regularized. If yes, in that event, the petitioners are entitled for same treatment which was given to

the employees of other Nagar Palika Parishads.

Consequently, I quash the order dated 4.10.2017 and direct the respondent no.1 to take fresh decision regarding creation of post of Sweeper in

Nagar Palika Parishad, Bazpur by considering the letter dated 18.06.2016 written by respondent no.3. The respondent may ask for further information

from Nagar Palika Bazpur. The respondents will also consider the order passed in Writ Petition (S/S) No.154 of 2017, if same has any bearing on the

present case. The said decision shall be taken within a period of two months from the date of production of certified copy of this order.

Petition stands disposed of.