L K THUSSU Vs. STATE OF UTTARAKHAND
HIGH COURT OF UTTARAKHAND
L K Thussu
STATE OF UTTARAKHAND
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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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