Uttarakhand High Court
Nideshak Prashichhan Awam Sewa Yojan vs Smt. Amreshwati W/O Pradeep Kumar on 22 February, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MS. RITU BAHRI
AND
THE HON'BLE JUSTICE SRI RAKESH THAPLIYAL
22nd February, 2024
Special Appeal No. 889 of 2017
Nideshak Prashichhan Awam Sewa Yojan
and others ........Appellants
Versus
Smt. Amreshwati W/o Pradeep Kumar ........Respondents
Counsel for the appellant : Mrs. Puja Banga, learned Standing
Counsel.
Counsel for the respondent : Mr. Tapan Singh, learned counsel.
Judgment: (per Rakesh Thapliyal, J.)
The present Special Appeal is preferred by the
appellants against the judgement dated 12.04.2017, passed by the
learned Single Judge in Writ Petition (S/S) No. 6982 of 2021 (Old
WPSS No. 2722 of 1992), whereby, the writ petition of the
petitioner was allowed by observing therein that the petitioner
would be deemed to be appointed on the regular basis from the
initial date of his appointment, i.e. 20.12.1989.
2. The present Special Appeal is barred by limitation and
since this Court is deciding the present appeal on its own merit,
therefore, with the consent of the parties, the delay in preferring
the instant appeal is condoned.
3. The brief facts of the case are that the petitioner
/respondent was selected on the recommendation of the Selection
Committee and appointed by an order dated 20.12.1989 on daily
wages basis on the post of Typist. This initial appointment was for
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six months but time to time it was extended, firstly on 22.06.1990
and again by an order dated 28.12.1990. Since time to time
extension was given, so the salary of the petitioner was also
increased time to time.
4. Since the earlier engagement was on daily wages basis,
subsequently, by an order dated 01.08.1992, the petitioner was
appointed on temporary basis on the post of Junior Clerk in pay
scale of Rs.950-20-1150-25-1500. It is contended before the
learned Single Judge that the said appointment was against clear
vacancy caused by the promotion of one Mr. N.S. Rawat, who was
promoted as a Senior Clerk.
5. It is also contended that the petitioner's appointment
was approved by the Director and since 01.08.1992, he was
continuing on temporary basis against the clear vacancy. By an
order dated 19.01.1993, the Additional Director cancelled the
appointment of the petitioner on the ground that the appointment
was made without the permission of respondent No. 2. The said
order was assailed before the Hon'ble High Court of Judicature at
Allahabad, through a Writ Petition on the ground that the order
dated 19.01.1993 is totally arbitrary and against the principle of
natural justice as neither a show cause notice has been given nor
the petitioner was given an opportunity of hearing before
cancelling her appointment. The Allahabd High Court stayed the
order dated 09.02.1993, which was subsequently extended.
Thereafter, the writ petition was transferred to this Court due to
bifurcation of the State and the petition was renumbered as Writ
Petition (S/S) No. 6982 of 2021.
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6. The learned Single Judge allowed the Writ Petition and
quashed the order dated 19.01.1993, whereby the appointment of
the petitioner was cancelled on the ground that no show cause
notice was given to the petitioner before terminating the
appointment by an order dated 19.01.1993, and as such, the same
is in violation of principle of natural justice .
7. Being aggrieved with the judgment of learned Single
Judge dated 12.04.2017, the present Special Appeal has been
preferred on the ground that the petitioner was given the work of
Clerk in Rajkiya Audyogik Prashichhan Sansthan, Rajpur Road
Dehradun temporarily on account of the sudden death of Mr. K.C.
Upreti, Junior Clerk on 01.08.1992. Subsequently, the same was
cancelled due to some personal mistake.
8. It has not disputed by the learned counsel for the
appellant that the petitioner was offered an appointment on
temporary basis on 01.08.1992. This fact has not been disputed by
the learned counsel for the appellant that after the interim order
passed by the High Court of Judicature at Allahabad, the petitioner
is continuously working and the stay order was never vacated.
Though the petition was dismissed in default on 01.06.2007 and
the interim order consequently stood vacated and after a period of
nine years, the petitioner filed Restoration Application, which was
allowed and the matter was restored on 17.08.2016, along with the
interim order.
9. In the entire appeal, it is nowhere stated that during the
period when the stay order was not in force due to dismissal of the
writ petition for want of prosecution, whether the petitioner was
discontinued or not.
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10. We perused the judgment of the learned Single Judge,
wherein, the order impugned was quashed on the ground that no
show notice was given to the petitioner. It is settled principle of
law that once an incumbent is appointed, then such an appointment
cannot be cancelled without giving notice. This fact has not been
disputed by the appellant that no such notice was given to the
petitioner before cancelling her appointment.
11. Therefore, we do not find any error on the face of the
judgement, however, this Court is of the view that treating the
petitioner's to be appointed on regular basis w.e.f. 20.12.1989,
should be modified and the same be treated to be effective w.e.f.
01.08.1992, which in fact, the date of actual appointment of the
petitioner on temporary basis.
12. Therefore, the Special Appeal is disposed of by
modifying the order of the learned Single dated 12.04.2017 by
treating the appointment of the petitioner on regular basis from
01.08.1992 instead of 20.12.1989.
13. Subject to the aforesaid, the Special Appeal is disposed
of finally.
___________________________
Ritu Bahri, C.J.
___________________________
Rakesh Thapliyal, J.
Dt: 22nd February, 2024
Shiv
