IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 1202 of 2008 Atar Singh ….Petitioner. Versus State of Uttarakhand and others …Respondents. Present : Mr. Ravi Babulkar, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. Ravi Babulkar, Advocate for the petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. The petitioner was appointed as a peon by the Principal of Government Higher Secondary School, Malna, Uttarkashi on 1.9.1998. This appointment was approved by the District Inspector of Schools, Uttarkashi (from hereinafter referred to as DIOS) as well. On this there is not dispute. Subsequently the petitioner’s services were terminated vide order dated 8.12.1999 by the DIOS. This order dated 8.12.1999 was challenged by the petitioner by filing a writ petition before the High Court of Judicature at Allahabad being Writ Petition No. 54796 of 1999 wherein as an interim measure the impugned order dated 8.12.1999 was stayed vide order dated 6.1.2000. In other words, the petitioner continued to work as a peon in the said college. The said writ petition was subsequently transferred before this Court in view of Section 35 of the Uttar Pradesh Reorganisation Act, 2000 and was re-numbered as Writ Petition No. 6323 of 2001 (S/S). The petitioner at the relevant time was not being represented by any counsel. His writ petition was dismissed vide order dated 26.2.2008 for non-prosecution. Subsequently an application for recalling the said order was made. At the relevant time i.e. when the recall application was being argued it was also informed to the Court that while passing the impugned order dated 8.12.1999 (originally challenged in the writ petition), the respondent has not considered the earlier order dated 8.10.1999 passed by the 2 DIOS by which his services were regularized. On 23.6.2008 therefore a learned Single Judge of this Court passed the following order : “Heard Sri Ravi Babulkar, learned Counsel for the applicant/petitioner and Sri Niranjan Sah, learned Standing Counsel for the respondent no. 1 & 2. New grounds have been raised in delay condonation application, which are satisfactory. Accordingly, the delay condonation application is allowed. Delay in filing the recall application is condoned. Reasons stated in the recall application are satisfactory to allow the application. Hence, recall application is allowed. Orders dated 8.4.2008 and 26.2.2008 passed by this Court are recalled. Writ petition is restored to its original number. Learned Counsel for the petitioner stated that the services of the petitioner has been regularized vide order dated 8.10.1999 passed by the respondent no. 1, which is contained in Annexure No. 1 to the recall application. In view of the above, the writ petition has been rendered infructuous and the same is dismissed as such.” However, even before the said order could be passed, since the writ petition was dismissed for non-prosecution on 26.2.2008 and the said order (i.e. order dated 26.2.2008) being communicated to the DIOS, he terminated the services of the petitioner vide order dated 27.5.2008 by stating that the case of the petitioner has been finally decided by the High Court and the writ petition has been dismissed, his services are also being terminated. That being the state of affairs, when the petitioner subsequently apprised the authority of the order of learned Single Judge dated 23.6.2008 by which the earlier order of dismissing the writ petition dated 26.2.2008 was recalled and the petition being rendered infructuous, the concerned authorities were understandably in a fix as to what orders could they pass now! Therefore the DIOS vide his order dated 22.7.2008 had sought instructions from the Director of School Education, Uttarakhand, Dehradun stating the entire 3 sequence of events and asking the Director of School Education to pass an appropriate orders under the special facts and circumstances of the case. All the same, since nothing seems to have happened so far in the case of the petitioner. He has therefore filed the present writ petition with the following relief : “I. Issue a writ, rule, order or direction in the nature of certiorari calling for the records and quashing the impugned appointment cancellation orders dated 8.12.1999 and 27.5.2008 passed by District Inspector of Schools/District Education Officer, Uttarkashi respectively (contained as Annexure No. 4 & 7 to the writ petition). II. Issue a writ, rule, order or direction in the nature of mandamus commanding and directing the respondents to permit the petitioner to resume his duties with continuity in service and pay the arrears of salary from 27.6.2008 till the petitioner was allowed to resume his duties and further to give all service benefits to the petitioner as and when they fall due. III. Issue any writ, rule, order or direction which this Hon’ble court may deem fit and proper the circumstances of the case. under IV. Award cost to the petitioner.” The respondent, on the other hand, has defended the order of termination dated 8.12.1999 on the ground that the initial appointment of the petitioner dated 1.9.1998 was dehors the rule and it was an appointment made where there was already a ban for such appointment. The appointment itself was given without issuing an advertisement or following the procedure for such appointment. In other words, they have justified the termination order dated 8.12.1999. All the same, the State in its counter affidavit as well as the Education Authorities in its order dated 8.12.1999 has said nothing as to what would be the implication of the order dated 8.10.1999 i.e. the order by which even earlier to his termination his services were regularized. The concerned authorities though 4 have admitted that by order dated 8.10.1999 the petitioner already stood regularized in services. This Court vide order dated 19.7.2011 had called for the records. The records are therefore before this Court. The photo copy of the order dated 8.10.1999 has been placed before this Court which clearly says that after one year of satisfactory service of the petitioner he has been regularized. Though it is only a photo copy, yet the veracity of this document cannot be in doubt for the reasons that the DIOS has also noted these facts in his order dated 22.7.2008. Therefore at the time when the petitioner’s services were terminated he had already stood regularized in services and the fact of his regularization has not been considered while terminating the services of the petitioner. Moreover, strangely even the petitioner was not aware of his regularization which is evident from the fact that he has not made any mention of order dated 8.10.1999 in his first writ petition being no. Writ Petition (S/S) No. 6323 of 2001. Undoubtedly the facts of this case are rather peculiar. The legal position though would be as follows :- The petitioner’s services were terminated vide order dated 8.12.1999. He files a writ petition and obtains an interim order dated 6.1.2000 on the strength of which he continues to serve as a peon in the said college. Consequently his case is transferred to the newly created High Court of Uttarakhand and the present petitioner not being informed of the matter or not being represented by his counsel, as the case may be, his writ petition is dismissed for non-prosecution on 26.2.2008. What has to be noticed is that the writ petition was not dismissed on merit but only for non-prosecution. Subsequently a recall application is filed and the first order dated 26.2.2008 (by which the writ petition was dismissed) is recalled. The writ petition is restored to its original number but in view of the new fact that the petitioner had already stood regularized, the learned Single Judge disposes of the 5 matter as having become infructuous. In other words, the case of the petitioner has never been examined on its merit! It is also an undisputed fact that vide order dated 8.10.1999 the petitioner already stood regularized in services. A denial of service now to the petitioner and treating his services to be terminated would be denying the existence of an order dated 8.10.1999 by which his services already stood regularized. Though the concerned authorities may examine the legality and the validity of such an order afresh and this liberty must be granted to them, yet first they must reinstate the petitioner in service, more so because under these peculiar facts and circumstances of the case there is also a special equity in favour of the petitioner, at least for being reinstated in service as of present. Therefore, this writ petition is now being disposed of with the direction to the Director of Education, Uttarakhand, Dehradun to immediately reinstate the petitioner in service. After the petitioner is reinstated in service, the Director of Education though would be at liberty to pass any appropriate orders including giving directions to the concerned authorities for taking any appropriate action against the petitioner including dispensing with his services which may include recalling of order dated 8.10.1999 and pass any appropriate orders thereon. Needless to say that in case such a process is adopted by the concerned authorities, it will be done in full compliance of the principles of natural justice and fairplay. With the aforesaid observations, writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 1.8.2011 Avneet