NITIN UPADHYAY AND ANOTHER Vs. STATE OF UTTARAKHAND AND OTHERS
LAWS(UTN)-2013-11-39
HIGH COURT OF UTTARAKHAND
Decided on November 28,2013

Nitin Upadhyay And Another Appellant
VERSUS
State of Uttarakhand and others Respondents

JUDGEMENT

Barin Ghosh, C.J. - (1.) Private respondents herein were originally appointed on ad hoc basis. Subsequently, they were regularised in the year 2001. Petitioners were directly appointed in the year 2005. A seniority list was prepared, where the private respondents were shown senior to the petitioners. Petitioners challenged the seniority list before the Tribunal. Before the Tribunal, they contended that the service is governed by statutory Rules. They contended that the statutory Rules prescribed the feeding cadre; and that the private respondents were not in the feeding cadre. They further contended that the statutory Rules prescribed that people in the feeding cadre can be promoted only when they are selected by the Public Service Commission. They contended that, at the time of giving ad hoc appointments or at the time of regularisation, private respondents were not considered by the Public Service Commission to be fit to hold the posts in question. It was contended that, in those circumstances, private respondents were not entitled to be treated as senior to the petitioners.
(2.) This contention has been rejected by the Tribunal on the premise that, on creation of the State, 13 posts were available. As against that, only one person was discharging the duties attached to the posts. The remaining 12 posts remained vacant. It has not come on record that, at the time of creation of the State, anyone working in the State was in the feeding cadre. The State, in the circumstances, brought-in the private respondents to help out the State to discharge the duties attached to those posts, which were then lying vacant. Subsequently, the State regularised the private respondents in the posts in question. The Tribunal held that the statutory Rules granted the State Government power to relax the Rules. The Tribunal held that, though no specific order was passed by the State granting relaxation, but, having regard to the fact that the action of regularisation was the action of the State, it must be deemed that, while doing so, the State exercised its power of relaxation. The Tribunal held that, at the relevant time, the Uttarakhand Public Service Commission did not come into existence properly. It is being contended in the petition that the Uttarakhand Public Service Commission was established in May, 2001. Uttarakhand Public Service Commission may have been established in May, 2001 and, accordingly, there may not have been any impediment on the part of the State Government in referring the matter of the private respondents to the Uttarakhand Public Service Commission; but the fact remains that it was the State Government, which issued the regularisation order of the private respondents. It is being contended that a specific order, exercising the power of relaxation, having not been issued by the State Government; relaxation cannot be read into the order of regularisation. We need not go into that question, inasmuch as, before the Tribunal and even before us, petitioners have not challenged the regularisation of the private respondents. On being regularised, private respondents became Government employees. Unless their employment goes, they are entitled to the benefit of whatever they have done pursuant to the employment. One of the benefits of the employment is seniority. We are unable to ignore that seniority without pronouncing that the appointments were illegal. The fact remains that the private respondents became holders of the posts in question much before the petitioners were brought into the cadre. Therefore, on mathematical calculation, petitioners are junior to the private respondents.
(3.) We, accordingly, dismiss the writ petition.;


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