Decided on November 26,2012

L K Thussu Appellant


KALYAN JYOTI SENGUPTA, J. - (1.) THIS petition was initially filed for the relief asking for a writ of mandamus directing the respondents to regularize the services of the petitioner w.e.f. 12th March, 1987 under the State Government and grant him all consequential benefits. Further, direction was sought for to give seniority to the petitioner appropriately. When this writ petition was moved, by an interim order dated 16th April, 2005, the learned Single Judge of this Court directed the respondents to consider the petitioners representation wherein his grievances have been ventilated. Pursuant to the order of the Court, the representation was considered, however, the prayer for absorption of the petitioner has been turned down. The said order was also challenged by making an application for amendment of writ petition, and the same was allowed and subsequent order dated 20th June, 2005 is also brought under challenge. Therefore, all the issues involved in the writ petition have to be considered.
(2.) IT appears from the reasoned order, the Government has expressed the stand that absorption would not be granted in view of the fact that the petitioner did not secure 2nd division in B.Com. There is no other ground for rejection. Before I decide the issue, the short fact leading to filing of the writ petition is required to be stated. The same is hereby done: On 28th June, 1977, the petitioner was appointed as Clerk in Nainital Polytechnic, Nainital (hereinafter as the said polytechnic). The said Polytechnic at that time was managed by the Board of Management under the Chairmanship of Commissioner, Kumaon Division and financially aided by the Government. On 13th May, 1978, pursuant to advertisement issued for filling up the post of Instructor, the petitioner applied for the same and after taking test and being selected, he was appointed to the post of Instructor, Commercial practice on 23rd June, 1978 in the pay scale of Rs.325 -575 w.e.f. 5th July, 1978. On 25th April, 1986, the petitioner was confirmed to the said post. On 12th March, 1987, the said college was taken over by the State Govt. wholly. The said college was renamed as Govt. Polytechnic, Nainital and some new posts were created abolishing the existing posts. The persons working on the earlier posts were re -appointed in the new posts according to their salary. The option was invited to become Govt. servant from the date of taking over of the said Polytechnic. The petitioner duly exercised option to become the employee of the Govt. Polytechnic. Inspite of option being exercised, the petitioner was not enlisted in the regular list of government employee. Several representations were made for regularization and/or absorption. The petitioners services were not discontinued rather his services has been accepted by the respondents.
(3.) UNDER this circumstance, now the court has to look into the reasons for refusal to accept the petitioners services is sustainable in the eyes of law or not. The learned counsel for the petitioner submits that the reasons for refusal is not tenable in case of petitioner as at the time of appointment, there was no qualification as mentioned later on and the said stipulation of securing IInd division in B.Com cannot have any retrospective operation as on that point of time there was no mention as to the division, rank and qualification. Moreover, he submits that other candidates who were similarly placed were also absorbed and regularized whereas the petitioners case has been denied.;

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