Uttarakhand High Court
Nagendra Kumar vs State Of Uttarakhand & Another on 29 March, 2019
Equivalent citations: AIRONLINE 2019 UTR 839
Author: N.S. Dhanik
Bench: Ramesh Ranganathan, N.S. Dhanik
THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 214 of 2019
With
Delay Condonation Application No. 3449 of 2019
Nagendra Kumar .....Appellant
Vs.
State of Uttarakhand & another ...Respondents
Present:
Mr. T.A. Khan, Senior Advocate assisted by Mr. A.K. Arya, Advocate for the appellant.
Mr. J.C. Pande, Brief Holder for the State of Uttarakhand.
Mr. Vikas Bahuguna, Advocate for respondent no. 2.
Dated: 29th March, 2019
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble N.S. Dhanik, J.
Ramesh Ranganathan, C.J. (Oral) The delay in preferring the appeal is not opposed by the learned counsel for the respondents and the delay is, therefore, condoned.
2. Heard Sri T.A. Khan, learned Senior Counsel for the appellant-writ petitioner, Sri J.C. Pande, learned Brief Holder and Sri Vikas Bahuguna, learned counsel for the 2nd respondent and, with their consent, the appeal is disposed of at the stage of admission.
3. While two persons had filed the writ petition, only one of them has preferred this appeal. Sri T.A. Khan, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, would submit that the other individual, who had invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, has left the services of the second respondent; and, since it is only the appellant who is continuing in service, this appeal is confined only to him and not to the other.
24. Facts, to the limited extent necessary, are that the services of the appellant herein was engaged as an Instructor, pursuant to an advertisement whereby applications were invited for appointment on contractual basis. The appellant herein was appointed on 21.10.2013. Thereafter, the Directorate General of Employment & Training of the Ministry of Labour & Employment, Government of India informed all the State Governments, vide letter dated 27.05.2014, that the working group, constituted by the Ministry of Labour & Employment, had recommended that, for every unit in a trade, one of the instructors appointed should be with professional qualifications as I.T.I. pass out with the National Craft Instructor Certificate, and the other should be a degree/diploma holder trained in C.I.T.S. in the prescribed time, in terms of the specified technical qualifications. In view of the said proceedings dated 27.05.2014, the second respondent could engage only one I.T.I. Instructor, and was obligated to appoint a person, as the other instructor, only if he possessed the professional qualification of degree/diploma along with technical qualifications. Aggrieved by a fresh advertisement being issued, inviting applications from eligible candidates to be appointed on a contract basis, the writ jurisdiction of this Court was invoked by the appellant along with another.
5. In the order under appeal, the learned Single Judge observed that no right was conferred on a contractual appointee to claim that he was entitled to continue in service, as his appointment is governed by the terms and conditions of the contract. While dismissing the writ petition, the learned Single Judge observed that the respondents should endeavor to undertake the process of regular selection, instead of continuing intermittent contractual appointments.
36. As noted hereinabove, the proceedings of the Directorate General of Employment & Training dated 27.05.2014 obligated the second respondent to have one Instructor with I.T.I. qualification, and the other with a person who had a professional degree/diploma with the prescribed technical qualifications. The petitioner is, admittedly, an I.T.I. pass out and is, therefore, entitled to be appointed as one of the two Instructors, the other being a person with professional qualification having a degree/diploma with the specified technical qualification.
7. Since the other individual, who along with the appellant had filed the writ petition, is said to have left the services of the second respondent, the appellant, who satisfies the requirement of having I.T.I. qualification, can be continued on contractual basis, and the second post of Instructor can be filled from among eligible applicants who possess the professional qualification of a degree/diploma with the specified technical qualification.
8. Suffice it to modify the order of the learned Single Judge and hold that, in the light of the judgment of the Supreme Court in Secretary, State of Karnataka & others vs. Uma Devi & others: (2006) 4 SCC 1, the second respondent was not justified in replacing one contractual employee with another. The second respondent is directed to continue the services of the petitioner, albeit on contractual basis, till regular selections are made to fill up the post of I.T.I. Instructor in the second respondent department. Needless to state that continuance of the appellant on a contractual basis would not disable the respondents, in case the appellant-writ petitioner's services are found to be unsatisfactory or if he commits any act of misconduct, from taking action against him in accordance with law. It shall also be open to the respondents to fill up both 4 the available posts on a regular basis through a fair and transparent mode of selection.
9. The Special Appeal stands disposed of accordingly. No costs.
(N.S. Dhanik, J.) (Ramesh Ranganathan, C.J.) 29.03.2019 A.kaur