Uttarakhand High Court
State Of Uttarakhand & Others ... vs Harish Chandra Sati & Others on 11 December, 2018
Author: Lok Pal Singh
Bench: Ramesh Ranganathan, Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No.862 of 2017
State of Uttarakhand & Others .....Appellants
Versus
Harish Chandra Sati & Others ....Respondents
Mr. Rajeev Singh Bisht, Brief Holder for the State-appellants
Mr. Siddhartha Sah, Advocate for respondent nos.8, 10 and 11
Date of Judgment : 11.12.2018
Coram : Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Lok Pal Singh, J.
Hon'ble Ramesh Ranganathan, C.J. (Oral) Heard Shri Rajeev Singh Bisht, learned Brief Holder appearing on behalf of the appellant-State and Shri Siddhartha Sah, learned counsel appearing on behalf of respondent nos.8, 10 and 11.
2. The application to condone the delay in preferring the appeal is not seriously opposed by the learned counsel for respondent nos.8, 10 and 11. The delay is, therefore, condoned. The application is ordered.
3. While notices were served on the other respondents and Shri T.C. Pandey, learned counsel had appeared on their behalf before the learned Single Judge, neither is Shri T.C. Pandey, learned counsel, present today nor is there any representation on his behalf.
4. This appeal is preferred against the order passed by the learned Single Judge in WPSS No.1969 of 2011 dated 11.05.2017, wherein the learned Single Judge, following his earlier order in WPSS No.1759 of 2 2014 and analogous matters dated 11.04.2017, allowed the writ petition in terms of said judgment; and directed the respondents to regularize the services of the respondents-writ petitioners as Forest Guards within a period of ten weeks.
5. In his earlier order, passed in WPSS No.1759 of 2014 dated 11.04.2017, the learned Single Judge had taken note of the submission of the learned Chief Standing Counsel that the State had taken a decision not to fill up the posts which had to be filled from amongst the category to which the petitioners belonged (seasonal workers), and such posts will not be filled by direct recruitment. The Principal Chief Conservator of Forests was summoned by the order of the learned Single Judge dated 01.12.2014; and the Principal Chief Conservator of Forests also reiterated the stand that direct recruitment would not be resorted to.
6. The learned Single Judge, thereafter, noted that, under the U.P. Lower Subordinate Forest Service Rules, 1980 (adopted in 2002 and amended in 2007), vacancies are to be filled up in the ratio of 65% amongst seasonal workers, 25% by way of direct recruitment, and 10% by way of promotion; the State had sought further time to comply with the previous directions issued in WPSS No.1969 of 2011; instead of taking steps for regularization, the Principal Chief Conservator of Forests had advertised the posts by office order dated 22.07.2015; this exercise was in breach of the undertaking given by the Principal Chief Conservator of Forests; the Court had directed that steps be taken to regularize the services of the petitioner and similarly situated persons, despite which 3 an advertisement was issued on 22.07.2015; the State Government had framed the Regularization Policy in the year 2011 as well as 2013; the Principal Chief Conservator of Forests had directed all his subordinates to take steps to regularize casual/seasonal workers; the stand of the respondents-State was that the petitioners had participated in the selection process pursuant to the advertisement dated 22.07.2015; this stand was liable to be rejected as there cannot be any estoppel against the statutory rights; and the petitioner has a right to be regularized to the post of Forest Guard at par with similarly situated persons who have already been regularized.
7. As the learned Single Judge, in the order under challenge in this appeal, had referred to the statutory rights of the respondents-writ petitioners having being violated, without specifying what those rights were, we asked Shri Siddhartha Sah, learned counsel appearing on behalf of some of the respondents-writ petitioners, as to which statutory provision was referred to in the order under appeal. Learned counsel would submit that, during the hearing of Civil Appeal No.3634 of 1998 (State of U.P. Vs. Putti Lal, 2006 (9) SCC 337) before the Supreme Court, a scheme for regularization of daily wage employees was framed which were prescribed by way of Rules, made in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, called the Uttaranchal Forest Department Regularisation (on Group 'D' Posts) of Daily Wages Appointment Rules, 2003 (for short, the "2003 Rules").
48. As Shri Bisht, learned Brief Holder, would agree that the said Rules continue to remain in force, it is these Rules which are applicable for regularization of daily wage/casual workers, which would be applicable for regularization of seasonal workers also. The 2003 Rules relate to regularization of the services of all the persons who have been initially appointed on daily wages in Group 'D' posts before 29.06.1991, and were continuing in services on the date of commencement of the Rules. Shri Siddhartha Sah, learned counsel for the respondents-writ petitioners, would submit that, except for respondent no.11, all the other respondents- writ petitioners were appointed prior to 29.06.1991, and are continuing in services even as on date.
9. While a direction could have been issued to the appellants to consider the case of the respondents- writ petitioners, in terms of these Rules within a specified time frame, the learned Single Judge has, instead, issued a mandamus directing that the services of the respondents-writ petitioners be regularized, that too in the post of Forest Guards. Shri Rajeev Singh Bisht, learned Brief Holder appearing for the State- appellants, would submit that the post of Forest Guard is a Group 'C' post; and the respondents-writ petitioners, all of whom are daily wagers/seasonal workers, are only entitled to be considered for appointment to Group 'D' posts in terms of the 2003 Rules, and not to Group 'C' posts.
10. It is wholly unnecessary for us to dwell on this aspect, in the present proceedings, in as much as this exercise is required to be undertaken, in the first instance, by the respondent officials in conformity with the 2003 Rules. However, one fact requires to be borne 5 in mind. In State of U.P. and Others vs. Putti Lal, (2006 (9) SCC 337), when attention was drawn to the draft Rules framed by the Uttarakhand Government (then the State of Uttaranchal), the Supreme Court observed:-
""...... So far as the State of Uttaranchal is concerned, a scheme for regularization of daily workers has been produced before us which prima facie does not appear to be objectionable excepting the provisions regarding qualification for regularization. Be it stated that the qualification essential for being regularized would be the qualification as was relevant on the date a particular employee was taken in as a daily-wager and not the qualification which is being fixed under the scheme. The fact that the employees have been allowed to continue for so many years indicates the existence or the necessity for having such posts. But still it would not be open for the Court to indicate as to how many posts would be created for the absorption of these daily-wage workers. Needless to mention that the appropriate authority will consider the case of these daily-wagers sympathetically who have discharged the duties for all these years to the satisfaction of their authority concerned. So far as the salary is concerned, as we have stated in the case of the State of Uttar Pradesh, a daily-wager in the State of Uttaranchal would be also entitled to the minimum of the pay-scale as is available to his counter part in the Government until his services are regularized and he is given regular scale of pay. ....."
11. In terms of the aforesaid judgment of the Supreme Court, the qualification criteria prescribed in 6 the 2003 Rules cannot be applied to those who were appointed before 29.06.1991; and it is the qualification, prevalent during the relevant time when these employees were initially appointed as daily wage workers or seasonal workers or casual workers, which can be stipulated as the qualification required for appointment to these posts. We consider it appropriate, in such circumstances, to set aside the order under appeal and, instead, direct the appellants to consider the case of the respondents-writ petitioners strictly in accordance with the 2003 Rules, as clarified by the Supreme Court in State of U.P. vs. Putti Lal, with utmost expedition, and in any event not later than four months from the date of receipt of a copy of this order. Suffice it to make it clear that we have not expressed any opinion on the entitlement or otherwise of the respondents-writ petitioners to be regularized to any particular post, as these are all matters for the appellants to consider strictly in accordance with the 2003 Rules as clarified by the Supreme Court in State of U.P. vs. Putti Lal.
12. The appeal is disposed of accordingly.
13. All the pending applications also stand disposed of. No costs.
(Lok Pal Singh, J.) (Ramesh Ranganathan, C.J.) 11.12.2018 11.12.2018 Rajni