Uttarakhand High Court
25 June vs State Of Uttarakhand & Others on 25 June, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:5366-DB
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Service Bench No. 309 of 2013
25 June, 2025
Virendra Kumar Sharma --Petitioner
Versus
State of Uttarakhand & others --Respondents
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Presence:-
Mr. Siddhartha Sah, Advocate for the petitioner.
Mr. Puran Singh Bisht, Additional Chief Standing Counsel for
the State of Uttarakhand / respondents.
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Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Subhash Upadhyay, J.
(Per: Hon'ble Manoj Kumar Tiwari, J.)
JUDGMENT
Petitioner along with three other persons filed Claim Petition No. 5/N.B./2011 seeking a direction to count the services rendered by them as untrained Lekhpal for the purposes of seniority and also for regular salary for the period, they served as untrained Lekhpal. The said Claim Petition was dismissed by learned Tribunal, vide judgment dated 03.07.2013. Thus, feeling aggrieved, petitioner has approached this Court for challenging the judgment rendered by learned Tribunal. Operative portion of the impugned judgment is extracted below:-
"20. In view of the above, petitioners were not trained Lekhpals. They did not have the requisite qualification to be a regular Lekhpal when they were appointed as untrained Lekhpal in the department of 1 2025:UHC:5366-DB respondents. It is clear from the record that certain new posts were created so there was dearth of Lekhpals, so the respondents had to meet the said exigency, the untrained Lekhpals were appointed in the different Halkas on ad hoc basis. They did not hold the requisite qualification as provided under Rules 5 & 6 of the Lekhpal Rules, 1958. Their appointment had not been made by due process of law in accordance with rules; they were appointed on ad hoc basis. It is settled position of law as discussed above, if any person has been appointed without any due process of law and without having any requisite qualification, he cannot claim seniority from the date of his initial appointment; he can only get his seniority from the date of his regularization. Thus, the Government had not deliberately delayed their regular appointment and it is not pleaded in the petition that there was any malice or ill-will against the petitioners and their regularization was delayed. It is revealed from the record that Government to meet the exigencies appointed them immediately and thereafter the order of regularization on the regular post of Lekhpal and for sending them to training school were issued. Thus, we find that the conclusions of learned counsel for the petitioners have no force. We completely agree with the submissions of the learned counsel for the State.
21. In view of the above legal and factual aspects, the petitioners' period from initial appointment to the date of regularization cannot be counted for fixing the seniority of the petitioners.
22. The petition is liable to be dismissed. Therefore, the petition is hereby dismissed accordingly. No order as to costs."
2. Learned counsel for petitioner has relied upon Rule 18 of U.P. Lekhpals Service Rules, 1958 for challenging the judgment rendered by learned Tribunal. Rule 18 of the said Rules reads as under:-
"18. Temporary vacancies.-(a) In temporary vacancies exceeding one month, candidates borne on the list maintained under paragraph 5 shall, as far as possible, be appointed in accordance with their seniority.
(b) In the case of vacancies not exceeding one month, or in vacancies exceeding one month for which a qualified candidate is not available, the Assistant Collector may appoint an unqualified candidate provided that he is satisfied that the candidate is otherwise suitable for the job."
3. Learned counsel for petitioner submits that since Rule 18(b) enables the Assistant Collector to 2 2025:UHC:5366-DB appoint an unqualified candidate against vacancies existing on the post of Lekhpal, therefore, the view taken by learned Tribunal that petitioner was appointed dehors the Rules, is unsustainable.
4. Learned counsel for petitioner also relied upon a Constitution Bench judgment, rendered by Hon'ble Supreme Court in the case of Direct Recruitment Class II Engineering Officers' Association v. State of Maharashtra and others, reported in (1990) 2 SCC 715. Paragraph no. 47(B) of the said judgment, on which reliance was placed by learned counsel, is extracted below:-
"47(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted."
5. Appointments to the post of Lekhpal are governed by Lekhpals Service Rules, 1958. Rule 5(1) of the said Rules provides that only such candidates as have obtained the Patwari or Lekhpal School Certificate and whose names have been brought on the list mentioned in Rule 6, shall be eligible for appointment. Conjoint reading of sub-rule (3) & (4) of Rule 5 reveals that ex-patwaris with good record of service, who are otherwise eligible, can also be considered for appointment, however, they shall be treated as new 3 2025:UHC:5366-DB candidates and shall not get benefit of their past service in any matter. Rule 6 provides that Collector shall maintain a list of candidates, who have passed Patwari or Lekhpal School Examination for purposes of recruitment and appointment from the names included in the list shall be made in order of seniority, with reference to year of passing the examination. Rule 17 (2) provides that seniority of Lekhpals shall be determined from the date of substantive appointment and if two or more candidates are appointed on the same date, then one who passed Patwari or Lekhpal School Examination earlier, will be treated as senior. Although Rule 18 enables the Assistant Collector to appoint an unqualified candidate against temporary vacancies, if qualified candidate is not available, however, such appointment of an unqualified candidate cannot be treated as substantive appointment, in terms of Rule 17(2) and at best, it can be treated as stop-gap arrangement, till a qualified candidate is available for appointment.
6. It is not in dispute that petitioner was sent for training in the year 1983 and after successful completion of training, he was posted as Lekhpal, on 01.04.1986 and his seniority was reckoned from the 4 2025:UHC:5366-DB date of his posting as Lekhpal after successful completion of training.
7. As per Rule 5(1), a candidate who has not obtained the Patwari or Lekhpal School Certificate and whose name has not been brought on the list contemplated in Rule 6 is ineligible for appointment as Lekhpal. Thus, reliance by learned counsel for petitioner on Rule 18(b) of the Service Rules is misplaced. Rule 18 (b) can be invoked only when there is no qualified candidate available for appointment, however, appointment of an unqualified candidate cannot be treated as substantive appointment for the purpose of seniority. Petitioner was given seniority from the date he was posted after successful completion of training, therefore, learned Tribunal was justified in rejecting petitioner's claim for seniority from the date of his initial appointment as untrained Lekhpal.
8. Reliance placed by learned counsel for petitioner on the Constitution Bench judgment, rendered in the case of Direct Recruitment Class II Engineering Officers' Association v. State of Maharashtra and others (supra) is misplaced. Petitioner was not qualified when he was initially appointed by invoking Rule 18(b) of the Service Rules, therefore, he 5 2025:UHC:5366-DB was sent for training and upon successful completion of training, he was substantively appointed as Lekhpal. The judgment relied by learned counsel for petitioner contemplates a situation when a person, who is appointed on ad-hoc basis, fulfills all conditions of eligibility at the time of his initial appointment. Moreover, petitioner was sent for training, therefore, it cannot be said that he continued to serve on the post of Lekhpal, uninterruptedly till his substantive appointment.
9. Learned Tribunal has considered all relevant aspects in the impugned judgment. We concur with the reason given by learned Tribunal.
10. Thus, there is no scope for interference in the matter. The writ petition fails and is dismissed. (Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.) 25.06.2025 Navin NAVEEN Digitally signed by NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df0 06da82a131bb4e4403d3c0a15, postalCode=263001, CHANDRA st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA87 5643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA Date: 2025.06.26 10:34:39 +05'30' 6