Uttarakhand High Court
WPSS/1973/2022 on 19 October, 2022
1
Office Notes,
reports, orders or
proceedings or
SL. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
WPSS No. 1971 of 2022
WPSS No. 1972 of 2022
WPSS No. 1973 of 2022
WPSS No. 1974 of 2022
WPSS No. 1975 of 2022
WPSS No. 1976 of 2022
WPSS No. 1989 of 2022
WPSS No. 1990 of 2022
WPSS No. 1991 of 2022
WPSS No. 1992 of 2022
WPSS No. 1994 of 2022
WPSS No. 1995 of 2022
WPSS No. 1996 of 2022
WPSS No. 1997 of 2022
WPSS No. 1998 of 2022
WPSS No. 1999 of 2022
WPSS No. 2000 of 2022
WPSS No. 2001 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Mr. Rakesh Thapliyal, Senior Advocate, assisted
by Mr. Pankaj Chaturvedi & Mr. Ananya Thapliyal,
Advocates for the petitioners.
Mr. P.C. Bisht, Additional Chief Standing Counsel
with Mr. V.S. Rawat, Brief Holder for the State of
Uttarakhand/respondent nos. 1 & 2.
Mr. Vijay Bhatt, learned counsel for the
respondent nos. 3 to 5.
Since common questions of fact and law are
involved in these petitions, therefore, these petitions
are clubbed together and common order is being
passed. However, for the sake of convenience, facts
of WPSS No. 1971 of 2022 alone are being
considered.
Petitioners were appointed against sanctioned
posts in Secretariat of State Legislative Assembly on
different dates. Petitioners contend that they were
appointed on ad-hoc basis by the Competent
Authority, and as per the applicable Service Rules,
they have a right to be considered for regularisation.
However, it is contended on behalf of respondents
that petitioners were appointed by way of Stop Gap
Arrangement, de-hors the Service Rules, therefore,
they have no right or lien on the post.
Petitioners are challenging separate orders
dated 26.09.2022, 27.09.2022 & 28.09.2022 passed
by Deputy Secretary, Uttarakhand Vidhan Sabha
Secretariat, whereby their services have been
terminated with immediate effect. As per recital in
the impugned orders, their service is terminated in
public interest. No other reason is discernible from
the impugned orders.
Learned Senior Counsel for the petitioners
submits that petitioners were appointed in the year
2021.
It is submitted on behalf of the petitioners that
at the time of their ad-hoc appointment, petitioners
possessed all requisite qualification for regular
appointment to their respective posts and further that
work and performance of petitioners is above board
and there is no complaint regarding their conduct
from any quarter.
Learned Senior Counsel for the petitioners has
raised following contentions against the termination
orders passed by Vidhan Sabha Secretariat:-
(a) In Writ Petition (PIL) No. 66 of 2017 filed
by Mr. Rajesh Chandola and others, ad-hoc
appointments made in Vidhan Sabha in the year 2016
were challenged on various grounds. Vidhan Sabha
Secretariat filed counter affidavit justifying the ad-hoc
appointments, therefore, Vidhan Sabha Secretariat
cannot now take a contrary stand that petitioners'
appointment is illegal;
(b) Division Bench of this Court in Writ Petition
(PIL) No. 66 of 2017 repelled challenge to petitioners'
ad-hoc appointment made in Vidhan Sabha
Secretariat in 2016 and the method of appointing
eligible persons on ad-hoc basis was approved, thus
respondents cannot now contend that petitioners'
appointment as ad-hoc employee, is illegal;
c) Division Bench judgment dated
26.06.2018 directing respondents to verify which of
the ad-hoc appointees are not educationally qualified
and services of only those, who were not qualified,
was to be terminated, however, respondents have
terminated service of all ad-hoc employees without
undertaking the exercise contemplated in paragraph
no. 29 of the judgment rendered in Writ Petition (PIL)
No. 66 of 2017;
d) The impugned order(s) entail civil and evil
consequence to petitioners, however, in the impugned
order(s), no reason has been assigned for terminating
service of petitioners, thus, the impugned order(s) are
unsustainable in the eyes of law; and
e) Most of the petitioners have served for six
years as ad-hoc employee, however, neither any
notice nor opportunity of hearing was given to them,
before passing impugned termination order(s), which
is in negation of Principles of Natural Justice.
A counter affidavit is filed on behalf of
respondents in WPSS No. 1929 of 2022. In paragraph
no. 10 of the counter affidavit, reference is made to
the complaints received against ad-hoc appointments
and it is stated that an Expert Committee was
constituted by the Speaker on 03.09.2022 and the
Committee submitted its report on 20.09.2022. In
paragraph no. 15 of the counter affidavit, it is stated
that Expert Committee has also flagged the issue of
ad-hoc appointments, made in similar manner earlier,
which were regularised upto 2016. The counter
affidavit is however silent regarding deficiency, if any,
in the work, conduct and performance of the
petitioners.
The reason for terminating service of the
petitioners, as could be culled out from the counter
affidavit, is that they were appointed without following
the procedure prescribed in the Rules.
This Court finds some substance in the
contention made by learned Senior Counsels for
petitioners that Rules lay down the procedure for
regular appointment and no procedure is prescribed
for ad-hoc appointment, therefore, termination of
service of petitioners, only on the ground of non-
observance of the procedure provided in the Rules,
would be unjust.
The relevant Service Rules permit ad-hoc
appointments, as held by Division Bench of this Court,
however, it is also not in dispute that petitioners were
appointed, though on ad-hoc basis, without any
selection.
The order(s) of termination do not disclose any
reason, however, counter affidavit filed in Writ
Petition (S/S) No. 1929 of 2022 reveals that
termination order(s) have been passed based on
report of a Enquiry Committee. Whether reason
supplied through counter affidavit can be considered
while adjudicating the question of validity of
termination order(s), or not is a debatable question.
Similarly, whether petitioners were entitled to hearing
in the matter is also a question, which falls for
consideration in these cases.
There are other issues raised in these writ
petitions, which require scrutiny.
Learned Senior Counsel appearing for the
petitioners is relying upon a judgment rendered by
Hon'ble Supreme Court in the case of Pankaj Gupta
and others v. State of J & K and others, (2004) 8 SCC
353. Paragraph no. 6 of the said judgment is
reproduced below:-
"6. No person illegally appointed or appointed
without following the procedure prescribed under the law, is
entitled to claim that he should be continued in service. In
this situation, we see no reason to interfere with the
impugned order. The appointees have no right to
regularisation in the service because of the erroneous
procedure adopted by the authority concerned in appointing
such persons. Hence, the reliefs are required to be moulded
especially in view of the fact that the appellants were
appointed as early as in the year 1997 and ever since they
have been working as orderlies, process servers, guards,
etc. Moreover, the appointments of the appellants were
made on the basis of the recommendations of the members
of the Legislative Assembly and the Legislative Council and
on the basis of the decision made by the State of Jammu
and Kashmir pursuant to a detailed discussion on the Floor
of the Legislative Assembly regarding lack of proper
representation of rural masses as compared to urban
candidates in government jobs. Hence, we issue the
following directions:
1. All the vacant posts shall be notified for appointment
and applications called for in accordance with the rules
within six months from the date of the receipt of this
judgment.
2. All the appellants herein may be permitted to submit
application for appointment against such notification.
3. As regards the upper age-limit, these appellants shall
be given relaxation but there shall not be any relaxation in
the matter of the basic qualifications for appointment to
Class IV posts.
4. The appellants may be allowed to continue in service
till such regular recruitments are made and these posts are
filled up by a regular process of appointment."
Learned counsels for respondents pray for and
are granted four weeks' time for filing counter
affidavit(s). Petitioners may file rejoinder thereto
within two weeks thereafter.
List these cases on 19.12.2022 along with WPSS
No. 1929 of 2022.
Till the next date of listing, impugned
termination order(s) passed in respect of petitioners
shall remain stayed and petitioners shall be allowed to
work and be paid remuneration, as before.
However, the Competent Authority in Vidhan
Sabha Secretariat shall be at liberty to initiate process
of selection for regular appointment to all vacant
posts, including the posts against which petitioners
were serving on ad-hoc basis.
The Competent Authority in Vidhan Sabha
Secretariat shall be at liberty to undertake the
exercise in terms of paragraph no. 29 of the judgment
in Writ Petition (PIL) No. 66 of 2017.
Petitioners will not claim any equity on the
strength of this order and service rendered by them
on the strength of this order, will not create any new
right in their favour, including that of regular
appointment. However, it shall be open to
petitioners, who meet all eligibility conditions, to
participate in the selection for regular appointment,
when initiated by the Competent Authority, and their
participation in the selection will be without prejudice
to their rights and contentions in their writ petitions.
Each petitioner shall also give undertaking by
filing affidavit before the Competent Authority in
Vidhan Sabha Secretariat that they will abide by all
the orders issued by superior authorities; they will
serve the organisation with utmost sincerity, honesty
and dedication and they will not divulge any official
information to unauthorised person; they will never
break the discipline nor will they cause disturbance in
Vidhan Sabha; and they will not create hindrance in
the process of selection, when initiated for regular
appointment.
Let certified copy of this order be supplied to the
parties within 24 hours, on payment of usual charges.
(Manoj Kumar Tiwari, J.)
19.10.2022
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