Uttarakhand High Court
WPSS/3399/2017 on 6 December, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 6TH DAY OF DECEMBER, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (S/S) No. 3399 of 2017
BETWEEN:
Bishambar Dutt Sati. ...Petitioner
(By Mr. Aditya Singh, learned counsel for petitioner)
AND:
State of Uttarakhand & others. ...Respondents
(By Mr. M.S. Bisht, learned Brief Holder for the State of Uttarakhand /
respondents)
JUDGMENT
Heard learned counsel for the parties.
2. By means of this writ petition, petitioner has
sought the following reliefs:-
"i. Issue a writ, order in the nature of
mandamus commanding the respondents to
regularize the services of the petitioner on the post
of Assistant Instructor (now called as Assistant
Lecturer) w.e.f. April, 1992 instead of 19.10.2006.
ii. Issue a writ, order in the nature of
mandamus commanding the respondents to pay
the entire arrears of salary as well as the other
consequential service benefits to the petitioner
w.e.f. April, 1992 from which he had performed the
work of Assistant Instructor and from which he was
actually entitled to be promoted."
3. Petitioner was regularly appointed as Lab
Assistant in Government Hotel Management & Catering
Institute, Dehradun in the year 1985. Subsequently, in
the year 1992, a vacancy arose on the post of Assistant
Instructor and petitioner was given ad-hoc promotion
against the said vacancy. His ad-hoc promotion was
subsequently withdrawn vide order dated 04.05.1994.
4. Petitioner challenged the said order dated
04.05.1994 by filing writ petition before Hon'ble
Allahabad High Court, and pursuant to the interim
order passed by Allahabad High Court, petitioner
continued to serve on the promoted post.
Subsequently, upon State Reorganisation, the said writ
petition was transferred to this Court and was
re-numbered as WPSS No. 231 of 2002. The said writ
petition was decided by Co-ordinate Bench of this Court
vide judgement dated 02.07.2003 with a direction to
respondents to consider petitioner for regularisation on
the post of Assistant Instructor, within one month.
5. Learned counsel for the petitioner contends
that till disposal of WPSS No. 231 of 2002, petitioner
was paid the salary admissible for the post of Assistant
Instructor.
6. It is not in dispute that the State
Government framed Service Rules for holders of
gazetted post in Government Hotel Management &
Catering Institute, which were notified on 19.10.2006.
Ultimately, services of petitioner were regularized on
the post of Assistant Lecturer vide order dated
23.03.2017 passed by Secretary, Tourism, Government
of Uttarakhand. In the regularisation order, it is
mentioned that petitioner's regularisation would be
effective from the date of enforcement of relevant
Service Rules, i.e. 19.10.2006.
7. Petitioner now contends that he is entitled for
regularisation on the post of Assistant Instructor/
Assistant Lecturer w.e.f. April, 1992 when he was
initially promoted on ad-hoc basis.
8. A counter affidavit has been filed by Mr. R.C.
Pandey, Principal, GIHM, Dehradun, on behalf of
respondent nos. 2 & 3. Paragraph nos. 8 & 9 of the
said counter affidavit, are reproduced below:-
"8. That the contents of para 5, 6, 7, 8 of the
writ petition are mater of record and call for no
reply. However, it is categorically submitted that
initially Petitioner was given adhoc promotion for 6
months till the time eligible candidate for the post
could be found and this was a stop gap
arrangement till the time suitable candidate with
requisite qualification could not be found. The
petitioner never had the requisite qualification for
the post of Asst. Instructor, moreover the
Petitioner was reverted to the post of Lab
Technician vide order dated 04.05.1994.
9. That the contents of para 9, 10, 11, 12 &
13 of the writ petition as far as the same relates to
filing of writ petition, order passed therein and the
contempt petition, the same is a matter of record
and call for no reply. The Answering Respondent
craves the leave to refer these contents and record
at the time of hearing, anyway it is clarified here
that the plea of the Petitioner for regularization as
Asst. Instructor, based on plea that he was
continuously performing the duty of Asst. Instructor
was rejected by the department vide order dated
18.11.2003 and this order was not challenged by
the Petitioner and the same has now become final
and any challenge to the same is now time barred.
That in the garb of the writ petition, the Petitioner
is trying to challenge the order dated 08.11.2003.
The present petition is devoid of any merit and is
liable to be rejected on this ground alone."
9. Learned State counsel submits that
regularisation under the State can be claimed under
some statutory Rule; while, petitioner's claim is not
based on any statutory provision. He further submits
that petitioner filed this writ petition in 2017 claiming
arrears of salary and other monetary benefits w.e.f.
April, 1992, therefore, the claim made by petitioner
regarding monetary dues is barred by limitation. He
further submits that petitioner was paid the salary
admissible for the post of Assistant Instructor (now
Assistant Lecturer) ever since he was given ad-hoc
promotion, therefore, the claim raised by petitioner for
arrears/dues of salary, is without any basis.
10. This Court finds substance in the submission
made by learned State counsel. In the absence of any
enabling provision for regularising the service of an ad-
hoc employee, no order of regularisation can be
passed. The State Government has passed
regularisation order in favour of petitioner, which is
made effective from the date of enforcement of the
relevant Service Rules. Learned counsel for petitioner
could not show any law, including statutory provision,
which entitles the petitioner to claim regularisation
from 1992.
11. In such view of the matter, the reliefs, as
claimed in the writ petition cannot be granted.
12. Accordingly, writ petition fails and is
dismissed. No order as to costs.
(MANOJ KUMAR TIWARI, J.)
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