Prakash Chandra Harbola vs State Of Uttarakhand And Others
2021 Latest Caselaw 3836 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

               Writ Petition (S/S) No. 2899 of 2018

Prakash Chandra Harbola                              .......... Petitioner

                                  Vs.

State of Uttarakhand and others                 ............ Respondents

Mr. Bhagwat Mehra and Mr. K.K. Harbola, Advocates for the petitioner.
Mr. P.C. Bisht, Additional Chief Standing Counsel for the State of
Uttarakhand/respondent nos.1 to 3.
Mr. Gopal Kumar Verma, Standing Counsel for the State of Uttar
Pradesh/respondent nos.4 and 5.

                             JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Challenge in the instant writ petition is made to two orders dated 08.01.2018 and 22.01.2018, by which, the petitioner was denied benefits of service from the date of his appointment. Petitioner claims all the service benefits w.e.f. 01.06.1990, when he took over the charge of Secretary, Notified Area Committee, Chamoli.

2. It is the case of the petitioner that he was initially appointed as Clerk in the Dwarahat Municipality on 01.03.1982 and continued up till 31.07.1986. Thereafter, his services were seized because the Government did not sanction any post. Subsequently, some posts in various municipalities in the State of Uttar Pradesh were created. Keeping in view, the earlier services rendered by the petitioner, he was given age benefit and appointed as Clerk in Notified Area Committee Karnaprayag on 04.05.1987. He continued working in that capacity. On 01.06.1990, the then Secretary, Municipality Karnaprayag was transferred to some other district. Therefore, the petitioner was handed over the charge of Secretary on 01.06.1990 by the Chairman of Municipality Karnaprayag. Subsequently, in the year 1991, a seniority list of the employees were prepared, in which, the petitioner was at the top. On 25.11.1991, the District Magistrate Chamoli sent a proposal to the State Government for approval of ad

hoc/temporary appointment of the petitioner as Secretary. The State Government, by a communication dated 12.12.1991, approved the proposal, not only this, upon a query from District Magistrate with regard to the payment of salary to the petitioner, to which, he may be entitled, the State Government clarified that the petitioner shall be paid the salary of Secretary. Petitioner worked in that capacity. It so happened that sometime in the year 2006, his services were reverted, he filed a writ petition. But, again he was reinstated. Subsequently, the nomenclature of the Secretary was changed into Executive Officer, Nagar Panchayat, Kedarnath. Petitioner continued in that capacity. In the year 2006, he was reverted to the original post. But, that Government Order was successfully challenged by him in the writ petition. He was again posted as Executive Officer, Nagar Palika and retired on 31.01.2015.

3. It is further case of the petitioner that his services were confirmed by the respondent on 04.03.2016 on the post of Executive Officer. But, it was not disclosed in the order confirming the services of the petitioner, as to from which date, he shall be deemed to be confirmed. Similarly situated other 11 persons were confirmed by the respondents on 26.05.2016 and his confirmation was not done with effect from the initial date of their ad hoc/temporary appointment. Petitioner is aggrieved with it. According to him, those 11 Executive Officers were also in the same list, in which, his name was earlier included. They were given confirmation with effect from their initial appointment as ad hoc/temporary, whereas, petitioner has been denied this benefit. Petitioner filed a Writ Petition (S/S) No.3715 of 2017 (for short, "the first petition") for the claim that his confirmation may be made effective with effect from his initial appointment as Executive Officer on 01.06.1990. The first petition was decided on 02.01.2018 and the Court directed that the representation of the petitioner be decided. By the impugned order dated 22.01.2018, the representation made by the petitioner has been rejected. Hence, the petition.

4. Respondent nos.1 and 3, the State of Uttarakhand, in their counter affidavit, has stated that the petitioner was not confirmed while in service. He had already retired when the order for confirmation was issued. The other 11 persons, who have been referred in the writ petition by the petitioner were confirmed while they were still in service.

5. Respondent no.2, in his counter affidavit, is not to have separately filed counter affidavit, claiming that he has been unnecessary made party in the writ petition. Subsequent to filing of this writ petition, petitioner has also filed rejoinder affidavit and supplementary counter affidavit have also been filed by the respondent nos.1 and 3.

6. Heard learned counsel for the parties and perused the record.

7. Learned counsel for the petitioner would submit that petitioner has been discriminating without any reason. Petitioner was given charge of Secretary, Municipality Karnaprayag on 01.06.1990 by the Chairman. The appointment was subsequently approved by the State Government and, in fact, State Government had directed that the petitioner be paid the salary of the Secretary. He had been working on that post till he retired in the year 2015. Reference has been made to a seniority list of the Executive Officers (Annexure No.13 to the writ petition). Based on it, learned counsel for the petitioner would submit that all the 11 other persons, who have been confirmed in the service with effect from their initial appointments as ad hoc/temporary are also included in the same list. This Annexure no.13 is the seniority list, which was prepared by the Director of the Department. In it, from serial no.8 onwards, the Executive Officers have been shown as ad hoc appointee. Petitioner's name is at the bottom of Serial No.27. 11 others Executive Officers, whose services were confirmed on 26.05.2016, by an order dated 26.05.2016 are also included in the same seniority list. It is true that they are up in the list, but they are also shown ad hoc

employees. The order confirming the other 11 Executive Officers is Annexure no.20 to the writ petition. In it, it is categorically stated as to from which date they were confirmed. Annexure no.19 to the writ petition is an order dated 04.03.2016, by which services of the petitioner were confirmed, but in this order dated 04.03.2016, it has not been mentioned that as to which date, the petitioner has been confirmed.

8. Learned counsel for the petitioner has also made reference to another Executive Officer, Om Prakash Agarwal, whose name also found mentioned at serial no.8 in the seniority list (Annexure no.30 to the writ petition). Admittedly, he was confirmed in service post retired with effect from the date of his initial appointment. Learned counsel would submit that if Om Prakash Agarwal had died long before he was confirmed and the petitioner's case is not on different footing. Petitioner ought to have been confirmed like 11 other persons were confirmed or like Om Prakash Agarwal was confirmed from the date of his initial appointment as Secretary, Municipality, therefore, the petition deserves to be allowed.

9. On the other hand, learned State counsel would submit that the petitioner had retired in the year 2015. During the time he was in service, his services were never confirmed. He was confirmed in the year 2016 and in the seniority list, which is being referred by the petitioner, is at the bottom.

10. In fact, once this matter had already been argued and judgment was reserved. But, then on 16.03.2021, this Court passed the following order:-

"In this writ petition, arguments have already been heard and the matter was reserved for judgment. But, before judgment is delivered, the Court is of the view that the respondents State may be required to clarify on certain issues.

According to the petitioner, similarly situated person Om Prakash Agarwal has been given the same relief, which the petitioner is seeking in the case. In para No.33 of the writ

petition, it is stated by the petitioner. In its counter affidavit dated 30.10.2018, the respondent Nos. 1 to 3 have not stated anything.

Om Prakash Agarwal was also regularized post retirement, whereas Annexure No.33 to the writ petition reveals that since the petitioner was not appointed under Rule 31 instead he was appointed as per paragraph 3 of Annexure No.33, his case can't be considered for absorption. This is stated in para Nos.3 and 4 of Annexure No.33. The distinction is made on the ground that the petitioner was not appointed under Rule 31 of the relevant Rules. Let the State clarify the following:-

(i) Under which Rule, the petitioner was ever appointed or his appointment approved as Executive Officer?

(ii) What is the distinction, which the department may be drawn between the petitioner and Om Prakash Agarwal?

State shall file an affidavit on the above two points within a week from today.

List thereafter for final hearing."

11. In compliance to it, a supplementary counter affidavit has been filed by the State. But, there is no answer to the first query as to under which Rule, the petitioner was ever appointed or his appointment approved as Executive Officer? With regard to Om Prakash Agarwal, in the supplementary affidavit, it is stated that he is appointed under Rule 31. The query remains unanswered even when this query was placed before the learned State counsel, he has no answer to it.

12. State has denied service benefits to the petitioner from the date of his initial appointment as ad hoc/temporary. Status on the ground that his confirmation was done post his retirement. But then, the question is, why his confirmation was done post retirement and why other 11 similarly situated persons' confirmation was done during their subsistence of their service? If it is of the act of the State, can the State choose, as on which date the confirmation order be passed? Can the State wait someone to retire and then passes the confirmation order denying such employees the service benefits from the date of his initial appointment on the ground that he was confirmed by the State post retirement? This may perhaps not be a reasonable classification for denial his benefits. It dehors of logic.

13. By the impugned order dated 08.01.2018, the representation of petitioner has been denied on the ground that the other 11 Executive Officers, who were confirmed with effect from their initial date of joining by the order 26.05.2016 were appointed under Rule 13 of the Uttar Pradesh Town Area and Notified Area Committees (Centralised) Services Rules, 1976 ( for short, "1976 Rules"), whereas, the petitioner was appointed by a procedure as detailed in para 3 of the impugned order dated 22.01.2018. But, the impugned order dated 22.01.2018 does not reflect as to under what Rules, the petitioner was appointed? It is silent and as stated, when this Court asked from the State on 16.03.2021 to tell, as to under which Rule, the petitioner was appointed? In affidavit, which is filed in response to the Court's query dated 16.03.2021, nothing has been disclosed.

14. Before the Court proceeds further, it may be apt to see as to what Rule 31, of the 1976 Rules speaks of. It is as hereunder:-

"31. Temporary arrangements.- Chairman, Town Area Committee or the President Notified Area Committee, as the case may be, shall make temporary officiating arrangements for the posts in the Centralised Services for a period of six weeks beyond which the State Government shall make officiating arrangements in respect of these posts."

15. A bare reading of this Rules reveals that the Chairman of Town Area Committee or the President Notified Area Committee, as the case may be, as a stopgap arrangement make temporary officiating arrangements for a period of six weeks, beyond which the State Government may make such arrangements.

16. In fact, the petitioner's case squarely falls under Rule 31. On 01.06.1990, he was given charge of Secretary, Town Area Committee Karnaprayag by the then Chairman. Not only this, subsequently, District Magistrate, Chamoli by his communication dated 25.11.1991, sent a proposal to the State Government for approval of the temporary/ad hoc appointment of the petitioner as Secretary and the State Government on 12.12.1991, accorded the approval (Annexure no.9 to the writ petition). The things did not stop here. It appears that

the District Magistrate, Chamoli again communicated with the State Government with regard to the salary of the petitioner and the State Government, by its communication dated 26.12.1991, directed the District Magistrate, Chamoli that the petitioner shall continue to work as ad hoc/officiating Secretary till further orders and he shall be paid the salary of the Secretary. It means the requirement of Rule 31. Therefore, denial of the service benefits to the petitioner with effect from the date of his initial ad hoc appointment as Secretary, Town Area Committee, Karnaprayag is not based on any logic.

17. It is admitted fact that similarly situated Secretary, Om Prakash Agarwal was granted the benefit post his death.

18. Having considered all facts, this Court is of the view that the writ petition is deserves to be allowed.

19. The writ petition is allowed. The impugned orders dated 08.01.2018 and 22.01.2018, issued by the respondent no.1 and 3, respectively, are hereby quashed. Petitioner shall be given all the service benefits including selection grade, promotional pay scale and benefit of ACP with effect from 01.06.1990, when he initially appointed as a Secretary.

(Ravindra Maithani, J.) 23.09.2021 Sanjay