Decided on April 18,2012

Uttarakhand Jal Sansthan Appellant
Uttarakhand Public Service Tribunal And Another Respondents


Barin Ghosh, C.J. - (1.) ON 1st March, 1988 the respondent was engaged as a daily wage Junior Engineer, by the writ petitioner herein. On 9th October 2003, a Scheme for regularization of daily wage employees was propounded by the petitioner. The said Scheme provided, amongst others, that a Junior Engineer, as the respondent was, if had been engaged as a daily wage worker by way of direct recruitment before 29th June 1991, and still working on said capacity on the date of making of the said Scheme, shall be considered for regular appointment, provided however, he had eligibility to be appointed in the post in accordance with the Rules. One of the required eligibility under the statutory Rules for engaging a Junior Engineer by direct recruitment is that the candidate concerned shall not be more than 32 years as on the date of appointment. Since the respondent was working with the petitioner in his capacity as a daily wage worker prior to 29th June 1991, it became necessary to ascertain whether, the respondent had eligibility of being directly recruited at the time he was first engaged as a daily wage worker on 1st March 1988. In order to complete the said exercise, it became necessary to look at the age of the respondent. While the same was looked at, it transpired that the respondent has furnished his High School certificate, where it was originally shown by words as well as in figures that the respondent was born on 5th May 1953, but the same was altered, both in words and in figures, to 5th May 1959. The said state of affair was brought to the notice of the respondent. No sooner the same was brought to the notice of the respondent, the respondent in writing held out to the petitioner that his date of birth is 5th May 1953, and that, in the High School certificate issued to him, the same has been incorrectly converted to 5th May, 1959. The petitioner also independently enquired from the school from where the High School certificate was issued and came to learn that, the said certificate, which was relied by the respondent, is a genuine certificate, where originally it was shown that the date of birth of the respondent is 5th May 1953. It appears that subsequent thereto, a show cause was issued to the respondent holding out that he caused manipulation in the High School certificate in order to obtain benefit of regularization. Respondent gave a reply to the show cause, denying material allegations contained therein. There after, a purported enquiry report was prepared, copy whereof was not served upon the respondent and, on the basis of the findings recorded in the enquiry report, the services of the respondent were terminated. Accordingly, respondent approached the Tribunal and, the Tribunal by the judgment and order impugned in the present writ petition, held that the enquiry conducted is contrary to the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, and as such, the order of termination of the service of the respondent was not sustainable. This finding was recorded despite noting that the respondent was a daily wage Jr. Engineer. Having had recorded the said finding, the Tribunal, while quashed the order of disengagement or termination of service of the respondent, but at the same time gave liberty to the petitioner to conduct disciplinary proceedings against the respondent in accordance with the said Rules. While doing so, the Tribunal did not notice that the said Rules were applicable only in relation to the Government servants. The Tribunal also did not pronounce that a daily wage employee of the Government is also a Government servant. By the judgment and order impugned in the writ petition, the Tribunal directed consideration of the case of regularization of the respondent. Being aggrieved thereby, the present writ petition has been filed. Since it is not in dispute that, the status of the respondent was that of a daily waged employee from 1st March, 1988, until the date his services were terminated, although he was being paid consolidated remuneration, we have not been persuaded to accept the finding of the Tribunal that, the said Rules were applicable in relation to the respondent. The learned counsel for the respondent faintly submitted that since the remunerations paid to the respondent came from the consolidated fund of the State Government, the respondent should be treated to be a Government servant within the meaning of the said Rules. We, out rightly reject the said contention of the learned counsel, inasmuch as, all expenditure of the State Government comes only from the consolidated fund of the State Government and from no other sources. The learned counsel drew our attention to Clause (b) of Section 2 of the U.P. Public Services (Tribunal) Act, 1976 and submitted that a public servant means every person, who is in the pay of the State Government and, accordingly, whoever is in the pay of the State Government should be deemed to be a public servant and, since Government servants are also public servants, the respondent is a Government servant. The fact remains that the definition of public servants, as given in Clause (b) of Section 2 of the said Act, is for the purpose of the said Act. In order to enlarge the jurisdiction of the Tribunal, which was established for the purpose of redressing the grievances of public servants, the meaning of the word 'public servant' was not confined only to persons in the service, but was also extended to people in the pay of the State Government. We are, accordingly, constrained to hold that the Tribunal erred in holding that the provisions of the said 1999 Rules applied to the case of the respondent and, as such a breach of the provisions contained therein would render the action complained of in the claim petition unsustainable.
(2.) AT the same time, we do not find any reason or justification for the petitioner to act in the manner it has acted. No sooner it came to the knowledge of the petitioner that the age of the respondent has been converted from 5th May, 1953 to 5th May, 1959, in an unjust manner, the petitioner brought the same to the notice of the respondent and, immediately the respondent accepted that his date of birth is 5th May 1953, and the same was unjustly converted to 5th May 1959. In view of the said acceptance, it was open to the petitioner to hold out to the respondent that, he goes out of the purview of regularization, but there was no just reason to issue a show cause and in furtherance thereof to dismiss or dis -engage the daily wage engagement of the respondent. For the reasons indicated above, we do not interfere with the judgment and order of the Tribunal impugned in the petition, whereby and under, the Tribunal has directed reinstatement, which should be read as re -engagement, of the respondent, but having regard to the fact that 1999 Rules or the Uttarakhand Government Servant (Discipline and Appeal) Rules 2003, had and have no application in relation to the respondent, we strike down that part of the order of the Tribunal by which the petitioner has been given liberty to proceed against the respondent under the said Rules and, also that part of the order of the Tribunal by which the petitioner has been directed to consider regularization of the respondent, inasmuch as, as on 1st March 1988, the respondent had crossed the age of 32 years on the basis of his accepted date of birth 5th May 1953. With the directions as above, we dispose of the writ petition and request the petitioner to re -engage the respondent in terms of the directions above, as soon as possible, but not later than one month from the date of service of a copy of this order upon the petitioner with a further request to the learned counsel for the respondent to obtain a copy of this order and submit the same to the petitioner.;

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