Uttarakhand High Court
Smt. Pinki Nazli vs State Of Uttarakhand And Others on 16 May, 2024
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No.2538 of 2018
Smt. Pinki Nazli ........Petitioner
Versus
State of Uttarakhand and Others ........Respondents
Presence:-
Mr. Dinesh Gahatori, learned counsel for the petitioner.
Mr. Rajeev Singh Bisht, learned Additional C.S.C. along with
Mr. Bhupendra Koranga, learned Brief Holder for the State of
Uttarakhand/respondent Nos.1 to 3.
Mr. Harendra Belwal, learned counsel for the respondent No.4.
Hon'ble Pankaj Purohit, J. (Oral)
By means of this writ petition, petitioner has
sought following reliefs:
(i). Issue a writ, order of direction in the nature of mandamus,
directing and commanding the respondent Nagar Palika
Parishad Jaspur to the effect that it shall change status of
the petitioner in its record i.e. EMPLOYEES Roll and treat
her contractual employee of the respondent nagar palika in
place of employee of the respondent No.4 i.e. outsource
agency.
(ii). Issue a writ order or direction in the nature of mandamus,
directing the respondent Nagar Palika Parishad Jaspur to
consider case of the petitioner for regularization on the post
of Junior Assistant/Data Entry Operator as per its board
resolution dated 17-07-2016 resolution no.58 (15)
{Annexure-7} after getting proper sanction/approval from
the state government in accordance with the provisions
contained in the regularization rules 2013 and further in
meantime during pendency of regularization proceedings,
grant minimum pay scale/wages to her as admissible to
the regular employee of same post on the principle of equal
pay for equal work.
2. The brief facts of the case are that on
06.05.2003, respondent No.3-Nagar Palika Parishad Jaspur
issued an advertisement inviting applications from the
Computer Operators for the purpose of computer typing
and for working of double entry system tally for a period of
one year, which was contractual in nature. On 13.05.2003,
petitioner moved her application before respondent No.3 for
getting contractual appointment on the post of Computer
Operator. The petitioner was selected and joined
respondent-Nagar Palika Parishad as Computer Operator
(contractual). She continued to work as Computer Operator
and thereafter, the said contractual period was extended
time to time and in doing so, till the end of the year 2015,
petitioner was working as an contractual employee,
therefore, on 17.01.2016, the board of the respondent
Nagar Palika Parishad in its board meeting vide resolution
no.58(15) passed a resolution and granted its approval. The
petitioner became hopeful that in a very short span her
services are going to be regularized but, the respondent
Nagar Palika Parishad informed the petitioner orally that
she cannot be regularized, as her name is figuring in the
list of outsource agency. The petitioner made a
representation dated 25.08.2017 to the respondent-Nagar
Palika Parishad Jaspur to consider her case for
regularization treating her the employee of respondent-
Nagar Palika in place of employee of outsourcing agency,
which is still pending consideration. Hence this petition.
3. It is contended by the petitioner in the writ
petition that the petitioner has completed more than 5
years continuous service with the respondent Nagar Palika
Parishad Jaspur and as per existing Regularization Rules
2013 she became eligible to be regularized on the post of
Junior Assistant/Assistant Computer Operator.
4. Respondent-Nagar Palika Parishad has filed its
counter affidavit denying the case of petitioner on the
grounds that she was not directly appointed rather she was
appointed through an Outsourcing Agency. It is further
contended in the counter affidavit that since, the petitioner
had never completed 5 years of continuous service as
contractual Employee of Nagar Palika Parishad Jaspur and
further she is working in Nagar Palika Parishad, Jaspur
through outsourcing agency, therefore she did not fulfill the
criteria of the Rule-4 of the Regularization Rules of 2013
and in compliance of the Government Order No.1023/sha.
Vi. Na.-Vividh-2018 (Structure)/15 T.C. dated 17.07.2017,
the petitioner cannot be regularized. Palika also relied upon
the judgment passed by a Division Bench of this Court vide
order dated 14.02.2019 in WPSB No.30 of 2019 Anuj Khati
Vs. General Manager, Uttarakhand Purva Saini Kalyan
Nigam (UPNAL), wherein, the petitioner had approached
this Court for commanding the respondents to permit the
petitioner to continue working as an Assistant Engineer in
Uttarakhand Jal Sansthan, but, respondent-Uttarakhand
Jal Sansthan has submitted that the petitioner is not the
employee of Uttarakhand Jal Sansthan. UPNL is an
organization, which provides employees on outsourcing
basis to various departments of the Govt. of Uttarakhand
and its corporations. It had sponsored the petitioner's name
for employment in the Uttarakhand Jal Sansthan and it is
always open to UPNL to withdraw the sponsorship. The said
writ petition was disposed of. Thus, in view of the above,
petitioner, being an outsourced employee, has no lien on
any post in Nagar Palika Parishad Jaspur and as such
cannot claim any regularization.
5. No rejoinder affidavit has been filed by the
petitioner.
6. Heard learned counsel for the parties.
7. Learned counsel for the petitioner further stated
that the status of the petitioner at the time of promulgation
of Regularization Rules of 2013 would be relevant for the
purpose of regularization. Learned counsel for the petitioner
argued that the respondent-department has not denied that
the petitioner has been working with the department as
Computer Operator since 2003 continuously, which fact
makes it clear that there is a necessity of the working of the
petitioner in the department and the work, which has been
performed by the petitioner is perennial in nature, hence,
still the services of the petitioner are needed. Learned
counsel for the petitioner further pointed out that the case
of the petitioner could be considered under the
Regularization Rules of 2013, by which time she had
completed 5 years as originally was the requirement, as per
Regularization Rules of 2013, but, the said Rules have been
stayed in WPSB No.616 of 2018, Narendra Singh and
Another Vs. State of Uttarakhand and Others, wherein, a
challenge was thrown to the validity of the Rules. The
attention of this Court was further drawn to the fact that
now, WPSB No.616 of 2018, has been finally decided by a
Division Bench of this Court vide judgment and order dated
22.02.2024, whereby, the Regularization Rules of 2013 was
upheld and are back in the statute book. Now, the services
of the petitioner can be considered for regularization under
those Rules by the respondent-department.
8. Per contra, learned counsel for the respondent
strongly supported the contention raised in the counter
affidavit. Apart from this, though, it is admitted that the
controversy with regard to the validity of the Regularization
Rules of 2013 has been put to an end by the Division
Bench of this Court vide judgment and order dated
22.02.2024, it is argued by the learned counsel for the
respondent that by the said judgment, in place of 5 years,
requirement for Daily Wager Services, 10 years have been
replaced by a Division Bench of this Court and in that view
of the matter, in order to avail the benefits of Regularization
Rules of 2013, the petitioner should have completed at least
10 years of service on the date of commencement of the
Regularization Rules of 2013. In another words, the
petitioner should have been engaged before 31.12.2003.
But, in this case, the petitioner is admittedly engaged as
Computer Operator with the respondent department on
14.05.2003. Thus, Regularization Rules of 2013 will not
come in way of the petitioner for her regularization.
9. Having heard learned counsel for the parties and
especially, in view of new fact that the Regularization Rules
of 2013, namely, Uttarakhand Regularization of Daily
Wager, Work Charge, Contract, Fixed Salary, Part-time and
Ad-hoc appointed employees Rules, 2013, challenged
Narendra Singh (Supra), have now been revived, as the said
writ petition is decided by the Division Bench of this Court
by reason of a judgment and order dated 22.02.2024,
whereby, the Regularization Rules of 2013 was upheld and
are back in the statute book, the services of the petitioner
can be regularized under Regularization Rules of 2013. The
respondent cannot take other plea to deprive the petitioner
of its right to claim regularization of her services as a
Junior Assistant/Assistant Computer Operator with the
respondent-Nagar Palika Parishad, as she has been
rendering service continuously since 2003. Mere changing
the nomenclature is nothing but a camouflage to deprive
the petitioner of her rightful claim. Therefore, it appears to
this Court that there is no hurdle to regularize the services
of the petitioner with the respondent-Nagar Palika Parishad
keeping in view the long standing service rendered as a
contractual employee and her entire youth and life spent in
the services of the respondent-Nagar Palika Parishad.
10. Accordingly, writ petition is allowed. A writ of
mandamus is issued commanding the respondents to
consider the case of petitioner for regularization with the
respondent-department under the Regularization Rules of
2013, as early as possible but not later than six weeks'
from the date of receipt of certified copy of this order. No
order as to costs.
11. Pending application(s), if any, stands disposed of
accordingly.
(Pankaj Purohit, J.)
16.05.2024
PN
