Uttarakhand High Court
State Of Uttarakhand And Others ... vs Dinesh Singh on 28 February, 2024
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
MS JUSTICE RITU BAHRI, C.J.
AND
MR. JUSTICE RAKESH THAPLIYAL, J.
Reserved On : 21.02.2024
Delivered on: 28.02.2024
SPECIAL APPEAL NO. 223 OF 2022(1)
State of Uttarakhand and others .......Appellants
Versus
Dinesh Singh .........Respondent
SPECIAL APPEAL NO. 367 OF 2022 (2)
State of Uttarakhand and others .......Appellants
Versus
Ramnath Singh Parmar and another. ......Respondents
SPECIAL APPEAL NO. 457 OF 2022 (3)
State of Uttarakhand and others .......Appellants
Versus
Mukesh Uniyal and others. ......Respondents
SPECIAL APPEAL NO. 33 OF 2023 (4)
State of Uttarakhand and others .......Appellants
Versus
Gambheer Singh Aswal and others. ......Respondents
SPECIAL APPEAL NO. 36 OF 2023 (5)
State of Uttarakhand and others .......Appellants
Versus
Jagdish Singh and others. ...Respondents
SPECIAL APPEAL NO. 38 OF 2023 (6)
State of Uttarakhand and others .......Appellants
Versus
Yashwant Shah and others ...Respondents
&
SPECIAL APPEAL NO. 61 OF 2023 (7)
State of Uttarakhand and others .......Appellants
Versus
Ram Prakash Kothari and others ......Respondents
Counsel for the appellants : Mr. B.S. Parihar, learned Standing
Counsel for the State.
Counsel for the respondents : Mr. V.B.S. Negi, learned Senior
Counsel assisted by Mr. Ankush Negi,
Mr. S.S. Yadav, Mr. Pawan Sanwal
and Mr. Niranjan Bhatt.
Upon hearing the learned Counsel, the Court
made the following
JUDGMENT :
(per Ms. Ritu Bahri, C.J.)
The appellants have come-up in Appeals against the
judgment of the learned Single Judge dated 13th December, 2021
whereby a bunch of six writ petitions challenging the order dated 8th
December, 2017 and the order dated 13th December, 2017 passed by
the Principal Secretary and the Director of Education denying grant of
the Selection Grade to the respondents-writ petitioners were set aside
and the writ petitions were allowed.
2. Brief facts of the case are that the respondents-writ
petitioners were initially appointed as "Shiksha Bandhu" in the year
2001. Vide order dated 31st January, 2006, they were granted ad hoc
status and thereafter, they were placed in the Grade Pay of Rs. 6500-
10500 as payable to the Lecturers (English) and this fact has not been
disputed by any of the parties. The respondents-writ petitioners were
claiming the benefit of Selection Grade consequent to grant of ad hoc
status. The Selection Grade of Rs. 7500-12000 with Grade Pay of Rs.
5400/- was to be determined in view of the parameters laid down by
the Government Order No. 655/Madhyamik/2002, dated 12th July,
2002.
3. The case of the respondents-writ petitioners is that as per the
above said Government Order dated 12th July, 2002, the Selection
Grade was to be given if the employee has completed 10 years of
satisfactory service after being placed in common cadre (Sadharan
Vetanmaan). The respondents-writ petitioners were granted the
benefit of Selection Grade by order dated 27th August, 2016 as per the
parameters provided in Government Order dated 12th July, 2002. After
grant of the Selection Grade, the same was withdrawn by the
Government vide impugned orders dated 8th December, 2017 and 13th
December, 2017.
4. The respondents-writ petitioners had earlier approached this
Court by filing a writ petition and that writ petition was disposed of
by order 28th May, 2019 directing the respondents-State to consider
the claim of the petitioners for grant of the Selection Grade while
deciding the representation without being influenced by the embargo
which had been created by the Government Order dated 08.12.2017.
The writ petitions of the respondents-writ petitioners were allowed by
the learned Single Judge by observing in Paragraph-9 of the judgment
dated 13.12.2021 that once the petitioners have been placed on a
'Sadharan Vetanman', and they were granted ad hoc status on 31st
January, 2006, for all intents and purposes after serving for 10 years,
the object of grant of Selection Grade as per the Government Order of
2002 has been complied with. The fact that they were regularised
vide order dated 28th December, 2013 cannot be made a ground to
deny them this benefit on rendering 10 years of service. Annexure-5
to Writ Petition (S/S) No. 2602 of 2019 is the Government Order
dated 12th July, 2002 for grant of selection grade. As per this Circular,
the Primary Teachers will be made available Selection Grade on
completion of ten years' satisfactory service in simple (original) pay-
scale.
5. In the facts of the present case, the present petitioners have been
treated as 'Prathmik Shikshak' vide order dated 31st January 2006 and
this fact has not been disputed by the respondents. Once the appellants
have not disputed the fact that the respondents-writ petitioners were
declared as 'Prathmik Shikshak' (Primary Teacher) with effect from
31.01.2006, for all intents and purposes, their ten years' service has
rightly been considered and the learned single Judge has rightly
allowed the writ petitions by treating the respondent-writ petitioners
as 'Prathmik Shikshak' w.e.f. 2006.
6. The argument of the learned counsel for the State that the
services of the respondents-writ petitioners were regularized on
28.12.2013 and the ten years period has to be computed from that day
is liable to be rejected, as the basic condition of the policy of 2002 is
that they should be Primary Teacher, and in the present case, once the
respondents-writ petitioners were declared as 'Primary Teacher' in
2006 and they were continuously working since 2006 till they were
regularized, their service of ten years has to be reckoned from 2006.
7. Learned State Counsel has referred to the judgment of the
Hon'ble Apex Court in the case of Rashi Mani Mishra and others vs.
State of Uttar Pradesh and others (2021) SCC OnLine 509 wherein
the Hon'ble Supreme Court was examining the issue as to how the
period of ad hoc service is to be counted for the purpose of seniority,
etc. The Hon'ble Supreme Court was examining the case of the Uttar
Pradesh Regularisation of Ad hoc Appointments (on posts within the
purview of the Public Service Commission) Rules, 1979 which was
related to the determination of seniority of Assistant Engineers in
State of Uttar Pradesh. In Paragraph 33 of the said judgment, by
referring to the Rules of 1979, the Hon'ble Supreme Court has
observed that if an employee was in continuous service on the post for
more than three years, he/shall shall be considered for regular
appointment and his/her appointment was to be done by a Selection
Committee. Thus, the appointments, on regularization of their
services, were made after their names were recommended by the
Selection Committee constituted under sub-rule (3) of Rule 4 of 1979
Rules. Their seniority will only be from the date of order of
appointment after the Selection Committee has recommended their
names and they cannot claim seniority from the date of their ad hoc
service. In this judgment, the Hon'ble Supreme Court was
considering the case for the purpose of seniority and the regularization
was made after participation before the Selection Committee. In the
facts of the present case, it is not a case for fixation of seniority, but it
is only a case for purpose of grant of Selection Grade as per the
Government Order of 2002, which only requires that a Primary
Teacher should have served for ten years and once the petitioners
were declared as Primary Teachers in 2006, they got the right to claim
the benefit of Selection Grade after completing 10 years' of service.
The Government Order of 2002 nowhere says that it should be given
as per seniority, restricting to certain percentage of cadre.
8. Another judgment referred to by the counsel for the State is in
the case of Malook Singh and others vs. State of Punjab and others
(Civil Appeal Nos. 6026-6028 of 2021, decided on 28th September,
2021). Even it was a case where there was a dispute regarding fixation
of seniority. The issue before the Hon'ble Supreme Court was also
with regard to fixation of seniority. The appellants before the Hon'ble
Supreme Court were working on ad hoc basis in Punjab Civil
Secretariat in 1975-76 and their services were regularised with effect
from 1st April, 1977, and while regularizing, one of the conditions was
that their seniority was to be fixed amongst ad hoc employees keeping
in view their length of service, and if two persons are appointed on the
same day, the older person was to be given seniority above the
younger person. There were some candidates, who were regularly
appointed after 1st of April, 1977 and they claimed seniority of their
ad hoc service against regularly recruited clerks appointed after them.
The regularly selected candidates could not claim seniority over and
above the candidates, who were regularized prior to their date of
appointment. When the matter came up before the Hon'ble Supreme
Court, a large number of employees had already retired and they were
receiving pensionary benefits and it was observed by the Hon'ble
Supreme Court that no recoveries can be made from them. The
Supreme Court did not take any steps to revise the seniority list with
effect from April 1977, especially keeping in view that most the
appellants had retired from the service and by disturbing the seniority,
the benefit of pension will also be required to be revised. The Appeals
were thereafter disposed of by the Hon'ble Supreme Court.
9. Both the above judgments, referred to by the State Counsel, do
not apply to the facts of the present case, as in the present case, all
conditions of the Government Order of 2002 were complied with and
once the respondents-writ petitioners were declared as 'Prathmik
Teacher' in the year 2006, and in the Government Order of 2002,
there was no condition that they should be regularized, the argument
of the State Counsel that the respondents-writ petitioners are not
entitled for the benefit of 'Selection Grade' as they were not
regularized on 31.01.2006 and were regularized only on 28.12.2013,
is not acceptable and the same is rejected.
10. The learned Single Judge has rightly allowed the writ petitions.
The judgment passed by the learned Single Judge dated 13.12.2021
requires no interference and the same is affirmed.
11. All the aforesaid Special Appeals are dismissed. No order as to
costs.
_____________
RITU BAHRI, C.J.
__________________
RAKESH THAPLIYAL, J.
Dt: 28th February, 2024
Rathour
