Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Special Appeal no.1 of 2005 State of Uttarakhand and others. …...Appellants. Versus Diwani Ram @ Diwan Ram ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. Jitendra Chaudhary, learned counsel for the respondent. (2) Special Appeal no. 2 of 2005 State of Uttarakhand and others. …...Appellants. Versus Sadhu Singh and others. ……Respondent/ Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. I.P. Gairola, Advocate and Mr. S.S. Yadav, Advocate for the respondents. (3) Special Appeal no.14 of 2005 State of Uttarakhand and others. …...Appellants. Versus Habib Ahmed. ……Respondent/Petitioner Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, learned counsel for the respondent. (4) Special Appeal no.59 of 2006 State of Uttarakhand and others. …...Appellants. Versus Tulsi Ram and others. ……Respondent/Petitioner. 2 Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, learned counsel for the respondents. (5) Special Appeal no.61 of 2006 State of Uttarakhand. …...Appellants. Versus Shiv Singh and others. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. Rajendra Dobhal, learned counsel for the respondents. (6) Special Appeal no.62 of 2006 State of Uttarakhand and others. …...Appellants. Versus Dalip Singh and others. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, learned counsel for the respondents. (7) Special Appeal no.64 of 2006 State of Uttarakhand and others. …...Appellants. Versus Deewan Singh and others. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. C.D. Bahuguna, learned counsel for the respondents. (8) Special Appeal no.65 of 2006 State of Uttarakhand and others. …...Appellants. Versus Chandra Pal and others. ……Respondent/ Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants. 3 Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, learned counsel for the respondents. (9) Special Appeal no.66 of 2006 State of Uttarakhand and others. …...Appellants. Versus Dhan Singh. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. C.D. Bahuguna, learned counsel for the respondent. (10) Special Appeal no.67 of 2006 State of Uttarakhand and others. …...Appellants. Versus Padma Dutt and others. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants. Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, learned counsel for the respondents. (11) Special Appeal no.68 of 2006 State of Uttarakhand and others. …...Appellants. Versus Bishan Singh and others. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, learned counsel for the respondents. (12) Special Appeal no.69 of 2006 State of Uttarakhand. …...Appellants. Versus Uma Kant and others. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants. 4 Mr. Jitendra Chaudhary, learned counsel for the respondents. (13) Special Appeal no.73 of 2006 State of Uttarakhand and others. …...Appellants. Versus Hira Lal Sah ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. D.S. Patni, learned counsel for the respondent. (14) Special Appeal no.62 of 2007 State of Uttarakhand and others. …...Appellants. Versus Dalip Singh and others. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. K.N. Joshi, learned counsel for the respondents. (15) Special Appeal no.63 of 2007 State of Uttarakhand and four others. …...Appellants. Versus Dharmanand ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, (16) Special Appeal no.64 of 2007 State of Uttarakhand and four others. …...Appellants. Versus Gopal Singh and others. ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants, Mr. Pooran Singh Rawat, learned counsel for the respondents. 5 (17) Special Appeal no.65 of 2007 State of Uttarakhand and four others. …...Appellants. Versus Mohan Singh Bhandari ……Respondent/Petitioner. Mr. J.P. Joshi, learned Chief Standing Counsel for the appellants. Dated: January 09th, 2009 Coram: Hon’ble V.K. Gupta, C.J. Hon’ble V.K. Bist, J. V.K. Bist,J. (Oral) Controversy involved in all these appeals on facts and law is same. Therefore, all these appeals have been consolidated and are being decided by a common judgment. Special Appeal no. 1 of 2005 is taken as the leading case. Special Appeal no.1 of 2005 has been filed by the appellants challenging the judgment and order dated 17th September 2003 passed by the Hon’ble Single Judge of this Court in Civil Misc. Writ Petition no. 1867 (S/S) 2003 by which cancellation orders dated 20.04.2000 and 21.04.2000 were quashed and it was directed that the respondents/writ petitioners shall be treated to be regular in service from the date they were regularized i.e. 05.08.1999. Brief facts, which emerge out from the record, are that the respondents/writ petitioners were working on different posts on work charge establishment prior to year 1991. The State Government vide Govt. Order dated 15.10.1997 framed a scheme of regularisation of the work charge employees. This 6 scheme was framed in the light of direction of Hon’ble the Apex Court and the High Court. It was provided in the scheme that such employees who fulfill the required eligibility and whose work and conduct has been satisfactory and who has completed five years service on 31.03.1997 may be considered for regularisation under the scheme. In pursuance of the aforesaid scheme the respondents/writ petitioners were considered for regularisation by the duly constituted Selection Committee and after selection they were regularised vide order dated 05.08.1999. Regularisation order of one of the respondents is reproduced as under:- “Office Memorandum Sri Ramesh Chandra Tewari S/o Sri Sukh Ram who is at serial no. 27 in the District level seniority final list of the Division letter no. 514/16 G.E. dated 05.03.97 and working in the post of Meth in Construction Division No.1 P.W.D., Haldwani is hereby posted in the regular side of the Establishment from 01.08.1999 in the pay-scale of Rs. 2610-60-3150-65-3540 in pursuant to the G.O. No. 6396/23-7-97-55 (Sa)/96 dated 15.10.97 and letter no. 2819/29 W.C.-Kumoun/99 dated 28.07.99 in this context of Chief Engineer (Parvatiya Samanway), P.W.D., Almora, Kumoun Division and the Dearness Allowance and othere allowances sanctioned by the State Govt. to the regular Govt. employees, will be payable to him. The condition of the appointment would be as under:- 1. The service of the employee will be on probation for a term of two years. The Executive Engineer/Work Superintendent may terminate the services without giving notice or without showing any reason, if work is not found satisfactory in the probation period. And after completion of the probation period services may be terminated at any time by giving notice of one month or without showing any reason by either side. 2. The employee can be transferred in any of the Division by the Executive Engineer/Work Superintendent under which he is working, after his appointment. 3. The information filled on Performa by the candidate to the Office, if lateron found false and that the important information has been concealed, his appointment can be cancelled and will be liable to be legal action. 7 4. The regularisation order can be cancelled, if contrary to the order or guidelines are received from the Chief Engineer for which no claim would be acceptable in the Court. Executive Engineer, Provincial Division, PWD, Nainital” Thereafter, the orders of regularisation were cancelled on 20.04.2000 Cancellation orders are also similar. One of the cancellation order is reproduced as under:- “Office Memorendum According to the directions issued by Chief Engineer, P.W.D., Lucknow in the letter no. 1090 Vyag/11/99 dated 03.07.99 in connection with the employee already appointed and for the future regularisation, by letter No. 2819/29 W.C.- Kumoun/99 dated 28.07.99 issued to the Provincial (Nodal) Division, P.W.D. Nainital, for the cadre holding regular service in the Establishment in Divisional Chief Engineer (Parvatiya Sanvarg) Kumoun, according to the necessity, various cadre were allocated with the condition that if any direction/order is issued in future then the allocated posts issued by the said letter will be deemed cancelled and no claim will be acceptable of the regular employee. Therefore, after the position in the matter is fully clarified, the Chief Engineer (Parvatiya Samanvay) P.W.D. (Kumoun Prabhag), Almora, vide its letter No. 3565/29 W.C.-Kunaun/99 dated 10.04.2000, revised numbers of posts in various cadres have been allocated to this District after canceling the allotted posts shown in his previous letter No. 2819/29 W.C.-Kumoun/99 dated 27.07.99. Hence, in compliance of the directions issued by Chief Engineer, Kumoun Division P.W.D., Almora in his aforementioned letter, the Office Order No. 2084/16 dated 05.08.99 of the undersigned bearing regularisation order of Sri Akalu Shah-Beldar S/o Sri Badri Shah is hereby cancelled. Cancelling the order of regularisation under the condition No.-4 mentioned in the aforesaid order, the employee is restored to his irregular work charge of Initial Establishment. The employee will continue his work and benefit of salary will be drawn in accordance with Part-6 of proviso-667 of Financial Hand Book. Sri Akalu Shah-Beldar will not be dismissed and his pay scale is not reduced after issuance of this order. Executive Engineer, Provincial Division, PWD, Nainital” 8 The Hon’ble Single Judge held that due to cancellation of regularization, the respondents/writ petitioners suffered civil consequences, therefore, the cancellation orders could not have been passed without affording opportunity of hearing to the respondents/writ petitioners and same were violative of principles of natural justice. Hon’ble Single Judge further held that though the Chief Engineer could have reallocated the respondents/writ petitioners on the basis of re-allotment of posts and the respondents/writ petitioners could be transferred to the other districts where the post were transferred but the regularisation orders passed in favour of the respondents/writ petitioners could not be cancelled merely due to reallocation of post. We have heard learned counsel for the parties and carefully perused the material available on the record. Shri J.P. Joshi, Chief Standing Counsel argued that vide regularisation orders the respondents/writ petitioners were kept on probation for a period of two years and before completion of probation period their regularisation orders were cancelled, hence there is no illegality in the cancellation orders and the respondents/writ petitioners cannot challenge the cancellation orders as the same were passed during probation period. This argument of the learned Chief Standing Counsel cannot be accepted as according to condition no.1 of the appointment order/regularisation order the services of the respondents/writ petitioners could be terminated without giving notice or without showing reasons, if work was not found satisfactory in the probation period and here it is not the case of the appellants that cancellation of regularisation of the services of the respondents/writ 9 petitioners was done due to their unsatisfactory performance. Learned Chief Standing Counsel for the State/appellants further argued that the respondents/writ petitioners’ regularisation orders were cancelled as they were appointed in excess of the available vacant posts and there is a settled law that the regularisation can only be done against the vacant posts. Regularisation orders were cancelled under condition no.4 of the regularization orders. According to Shri J.P. Joshi, the Hon’ble Single Judge has erred in allowing the writ petitions ignoring the fact that no regularisation could have been made when there was no vacant sanctioned post. He further argued that since the orders impugned in the writ petitions were neither punitive in nature and nor casting any stigma on the respondents/writ petitioners and the same were simple cancellation orders, no opportunity was required to be given to the respondents/writ petitioners and it cannot be said that appellants violated principles of natural justice. Learned Chief Standing Counsel further contended that the cancellation orders were passed simply in rectification of the mistake earlier committed and persons regularised in excess of the sanctioned strength were put back to original places. Learned Chief Standing Counsel vehemently submitted that none has been thrown out from the job and respondents/writ petitioners will be considered for regularisation as and when vacant posts will be available. In support of his arguments he placed reliance on (2006)8 S.C.C. 112 and (2006) 1 S.C.C., 667. Shri C.D. Bahuguna, learned counsel for the respondents argued that Clause 4 of regularisation order dated 05.08.1999 is based on certain contingencies, is vague, arbitrary and cannot be termed as valid. Same is bad and 10 deserves to be ignored. In support of his argument he referred the judgment of Hon’ble Supreme Court AIR (1986) Supreme Court 1571, AIR (1991) Supreme Court 101, and AIR 1998 S.C. 1681. He argued that there was no condition of probation in Government Order of 1997 and since it was matter of regularization, the condition of probation should not have been kept in the regularization order. He further argued that regularisation of respondents/writ petitioners was done after recommendation of duly constituted selection committee and Government cannot take turn by saying that posts are less. The termination of the respondents/writ petitioners could only be done only on the ground when their work was not found satisfactory. He also argued that due to cancellation order the petitioners have suffered civil consequences, therefore, cancellation order could not have been passed without proper hearing to the respondents/writ petitioners and cancellation orders are in violation of principle of natural justice. In support of his arguments Shri C.D. Bahuguna cited 1993 S.C.C. (L & S) 723, (1998)8 S.C.C. 194, (1999)6 J.T. 261. Shri C.D. Bahuguna by further relying on the judgment of Supreme Court in Shekhar Ghosh’s case 2007 (1) Supreme 860 argued that even when a mistake is sought to be rectified, principles of natural justice should be followed. Lastly, Shri C.D. Bahuguna submitted that large number of posts were increased subsequently against which respondents/writ petitioners can be adjusted. Sri M.C. Kandpal, Senior Advocate for the respondents pointed out that Special Appeal No.100/2004 (Defective) was filed by the appellants against the judgment of Hon’ble Single Judge but same was dismissed on the ground of limitation. 11 Against that order the appellants have not filed any Special Leave Petition before the Hon’ble Supreme Court and benefit of regularisation order was given to 53 employees. According to Shri M.C. Kandpal, the appellants are not justified in pursuing these appeals especially when they had not filed Special Leave Petition against the judgment of Division Bench in the matter of 53 employees. Similarly Shri Rajendra Dobhal, learned counsel for the respondents also argued that since the appellants have also not filed any Special Appeal in the matter of one Puran Singh and accepted the judgment of Hon’ble Single Judge, the appeals filed by the appellants deserve to be dismissed. As far as arguments of Shri M.C. Kandpal, Senior Advocate and Shri Rajendra Dobhal, Advocate are concerned, we are not passing any order considering their arguments because we are hearing the appeals on merit and are proceeding in the matter strictly on legality of the order passed by the Hon’ble Single Judge. We have heard the arguments of learned Chief Standing Counsel and Shri C.D. Bahuguna. It is true that regularisation was done after recommendation of duly constituted selection committee but it is also true that regularisation was done in excess of sanctioned vacant posts whereas no regularisation could have been done against no post. Thus, the appellants were justified in correcting their mistakes. In fact cancellation of regularisation of respondents/writ petitioners was not done by way of punitive measure nor any stigma was attached to them. Only regularisation order was cancelled. Cancellation 12 order itself provided that the employee is restored to his irregular work charge of initial establishment and he will continue to work and benefit of salary will be given in accordance with Part 6 of Proviso 667 of Financial Hand Book. Therefore, argument of the counsel for the respondents/writ petitioners that cancellation order could have only be passed on the ground when their work was not found satisfactory and could not have been passed without affording opportunity of hearing to the respondents/writ petitioners is not valid and is rejected. Cases cited by the counsel of the respondents/writ petitioners do not apply in the present case as neither cancellation was done by punitive measure nor any stigma is attached to them. Therefore, the Hon’ble Single Judge erred in quashing the cancellation orders on the ground of violation of principles of natural justice. We are also not convinced with the arguments of Shri C.D. Bahuguna that Clause 4 of the regularisation order is bad in law and deserves to be ignored. According to us there is nothing wrong in condition no.4 of the regularisation order. In view of the aforesaid discussion, we allow the Special Appeals. We set aside the judgment passed by Hon’ble Single Judge in all the writ petitions. It is true that most of the respondents/writ petitioners are continuing on the basis of regularization orders. Some employees are continuing as some appeals filed by the appellants were dismissed on the ground of delay against which no Special Leave Petition was filed. Similarly, at least in one case (Puran Singh’s case) no Special Appeal was filed by the appellants. Thus, most of the employees whose 13 regularisation orders were cancelled are working in the department on regular basis. During arguments it has been pointed out that after the cancellation orders several posts were created in the department. Therefore, the appellants are directed to consider the case of respondents/writ petitioners for regularization within a period of three months from today. The benefits including annual increment in salary etc. which were given to the respondents/writ petitioners after the regularization orders shall not be withdrawn as appellants have permitted such benefits to other employees also by not filing Special Leave Petition/Special Appeal and continued to grant all benefits of regularisation to them. No order as to costs. (V.K. Bist, J.) (V.K. Gupta, C.J.) 09.01.2009 Arti 14