IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 35 of 2006 Date of Decision : 07.12.2009 Director General Rashtriya Karyakram Anushravan Avam Mulyankan, Chikitsa Swasthya Avam Parivar Kalyan, U.P.,Lucknow Now Uttaranchal at Dehradun & Others. ……… Appellants Versus Kapindra Prasad Arya S/o Shri Daulat Ram, R/o Mohalla Bihar Khola, Rajpur, Almora. ……… Respondent CORAM:- HON’BLE J.S.KHEHAR, CHIEF JUSTICE HON’BLE TARUN AGARWALA, JUDGE Present: Mr. P.C. Bisht, Advocate for the appellants. Mr. C.D. Bahuguna, Advocate for the respondent. J.S.Khehar, C.J. (Oral) Through the instant appeal, the State Government has impugned the order passed by a learned Single Judge of this Court dated 07.02.2006, allowing Writ Petition No.2746 (S/S) of 2001. While allowing the aforesaid writ petition, this Court directed the State Government to re-consider the claim of the petitioner for regularisation within a period of one month. It also directed the appellants to pay the petitioner, salary of the post of Para Medical Assistant/District Assistant Immunization Officer with effect from 16.08.1991. 2. Learned counsel for the appellants has invited our attention to the factual back ground, which led to the passing of the impugned order dated 07.02.2006. In this behalf, it is pointed out by 2 the learned counsel for the appellants that the respondent Kapindra Prasad Arya was inducted in to the service of the appellants as a Small Pox Supervisor on 19.10.1973 under the Small Pox Eradication Programme of the Department of Medical and Health Services. While discharging the duties of the post of Small Pox Supervisor, he was transferred from time to time from one Primary Health Centre to another under the Chief Medical Officer, Almora. This continued from the year 1983 to the year 1991. In 1991, he was required to discharge the duties of the post of Para Medical Assistant at Hawalbagh. The Director General, Medical & Health Services, Lucknow, vide an order dated 30.07.1991 issued a transfer order in respect of an individual holding the post of Para Medical Assistant from Almora to Dehradun. As a consequence thereof on 14.08.1991, the respondent Kapindra Prasad Arya was required to discharge the duties of the post of Para Medical Assistant. It would be pertinent to mention that the post of Para Medical Assistant was subsequently re- designated as District Assistant Immunization Officer. The respondent continued to discharge duties of the post of Para Medical Assistant till 1995. In 1995, for the first time, he claimed regularisation in service. He also claimed salary in the scale of the post of Para Medical Assistant. No action, however, came to be taken at the hands of the appellants. The respondent again renewed his claim for regularization, as also salary in the year 1999. Since the claim of the respondent was not being considered, he approached this Court by filing Writ Petition No. 2746 (S/S) of 2001. Based on the aforesaid factual position, as also the provisions of the Uttaranchal Regularisation of Ad-hoc Appointments (on Posts Outside the Purview of Public Service Commission) Rules, 2002, (wherein an individual who had rendered service of the nature rendered by the respondent for a period of three years was entitled to regularization, subject to the condition that he was inducted in to service prior to 30.06.1998) the petitioner claimed regularisation against the post of Para Medical Assistant, as also, salary in the scale of the said post. 3 3. The learned Single Judge considered the claim of the respondent and found him entitled to regulariation under the aforesaid statutory provision. The instant finding of the learned Single Judge has been assailed by the appellants. 4. The first contention advanced by the learned counsel for the appellants, during the course of hearing of the instant appeal was, that the post of Para Medical Assistant/District Assistant Immunization Officer was required to be filled up by direct recruitment, and it was not open for this Court, to direct the regularisation of the services of the respondent against the said post for the reason, that regularisation is not permissible against a post which has to be filled up by way of direct recruitment. 5. During the course of hearing, we required the learned counsel for the appellants to invite out attention to any statutory rule, policy instruction or administrative order wherein regularisation has been ordered to be limited only to such posts as are filled up by a source of recruitment other than by direct recruitment. Learned counsel for the appellants, however, could not invite our attention to any such provision, and in fact, fairly stated that there was no such provision. In view of the acknowledged factual/legal position brought to our notice by the learned counsel for the appellants, we are satisfied that there is no merit in the first contention advanced by the learned counsel for the appellants. In the absence of any bar as against regularisation, for posts which are to be filled by direct recruitment, there could not be any denial at the hands of the appellants to regularize the respondent against the post Para Medical Assistant/District Assistant Immunization Officer, even though the said post was required to be filled up by direct recruitment. 6. The second contention advanced by the learned counsel for the appellants was, that the statutory rules of 2002 mandate that an 4 individual should be eligible for the post to which he is regularised. In other words, it is submitted that it is essential for an individual before being regularised to satisfy the authorities that he fulfils the qualifications prescribed under the statutory rules for the post to which he is claiming regularisation. 7. We have considered the second submission advanced by the learned counsel for the appellants. There is no material on the record of this case to establish that the respondent does not fulfil the mandatory qualification stipulated for appointment against the post of Para Medical Assistant/District Assistant Immunization Officer, In fact, in the counter affidavit filed on behalf the appellants before the learned Single Judge, no such objection had been raised at the hands of the appellants. We are, therefore, satisfied that the second submission advanced at the hands of the learned counsel for the appellants is also devoid of any merit. 9. No other contention was advanced at the hands of the learned counsel for the appellants. 10. For the reasons recorded herein above, we find no merit in this appeal and the same is, accordingly, dismissed. ( Tarun Agarwala, J. ) ( J.S. Khehar, C.J.) 07.12.2009 P.Singh