IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. (S/S) of 889 of 2010

Barkhu Lal Maurya ....Petitioner

Versus

State of Uttarakhand and others. ..Respondents

Present : Mr. M.C. Pant, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand.

Hon'ble Sudhanshu Dhulia, J. (Oral)

Heard Mr. M.C. Pant, Advocate for the petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand.

The petitioner is working as a fitter in a work charge establishment of Irrigation Department, Uttarakhand. Earlier he had filed a writ petition being Writ Petition No. 41 (S/S) of 2002 which was disposed of with the following observations :-

"9. Looking to the circumstances of the case and keeping in view the judgment of the Apex Court in Raj Narayan Prasad and others Vs. State of U.P. and others (1998) 8 SCC 473 and Government Order dated 07.02.1997, liberty is given to the petitioners to make a fresh representation to the respondents within a period of 15 days stating his grievances from the date of production of the certified copy of this order.

10. If such a representation is filed, the respondents are directed to pass a reasoned and speaking order in the light of the judgment passed in Raj Narayan Prasad and others Vs. State of U.P. and others (supra) and Government Order dated 07.02.1997 within a period of one month after the receipt of the certified copy of the order. Meanwhile, the order dated 14.01.2002 (Annexure No. 10) and 05.01.2002 shall remain in abeyance and that shall be subject to final result passed in the writ petition. However, if junior to the petitioners have been regularized and other seniors are left, the respondent will give due weight with regard to the regularization of the petitioners on the same footing on which benefits of regularization were given to juniors."

Subsequently the petitioner moved a representation before the concerned authority. All the same, the representation of the petitioner has been rejected vide order dated 21.11.2009 on the ground that in terms of the order of the learned Single Judge dated 30.3.2006, he was supposed to move a representation within 15 days but it was filed after a delay of three months and now the relief prayed by the petitioner cannot be granted as there has now been a decision of the Hon'ble Apex Court in Special Leave Petition No. 9103-9105/2001 Secretary, State of Karnataka & others V. Uma Devi, whereby such regularization cannot be made. The concerned authority while rejecting the claim of the petitioner has quoted paragraph 37 of the said judgment.

From the pleadings of the writ petition, counter affidavit, earlier decision of this High Court dated 30.3.2006 and also in view of the law laid down by the Hon'ble Apex Court in State of Karnataka & others V. Uma Devi (2006) 4 SCC 1, it is quite clear that the concerned authority, while passing the order dated 30.9.2006, has not bothered to go through the entire judgment of Uma Devi's case (supra) inasmuch as the main claim of the petitioner is based on paragraph 53 of the said judgment, which reads as follows :-

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases aboverefered to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

Learned counsel for the petitioner, however, states that he has been working for last more than 30 years without strength of any interim order of this Court. Further he states that there is already a scheme in the department which has been referred in the writ petition. On the basis of these combined submissions, the petitioner submits that he is liable to be regularized.

The writ petition is therefore disposed of with the direction to the petitioner to move a representation before the Secretary, Irrigation Department, Uttarakhand who shall dispose of the claim of the petitioner in view of the law laid down by the Hon'ble Apex Court in State of Karnataka & others V. Uma devi (2006) 4 SCC 1 considering such special category of cases as in the present writ petition and in case there is such a scheme, as relied upon by the petitioner, his regularization in service will be considered. In case such a representation is made, the same shall be disposed of within a period of six weeks from the date of production of a certified copy of this order. The petitioner is at liberty to place all the relevant records before the concerned authority. Writ petition is accordingly disposed of.

No order as to costs.

(Sudhanshu Dhulia, J)

22.7.2011

Kuldeep