IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No.41 of 2004 1. Dr. Km. Kamla Joshi D/o Sri M.B. Joshi, Presently posted as Reader/Head of Department, Sanskrit, In Govt. Post Graduate College, Rudrapur, District Udham Singh Nagar. 2. Dr. Km. Archana Shah, Presently posted as Reader/ Head of Department, Mathematics, In M.B.P.G. College, Haldwani, District Nainital. ………….. Petitioners Versus 1. State of Uttaranchal through the Secretary, Higher Education, Uttaranchal Shasan, Dehradun. 2. Director of Higher Education, Uttaranchal, Dehradun. ………….. Respondents Present: Mr. K.N. Joshi, Advocate for the petitioners. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State/respondents. Mr. R.K. Raizada, Advocate for the interveners. Coram : Hon’ble Barin Ghosh, Chief Justice Hon’ble Servesh Kumar Gupta, Judge Date: 20th May, 2011 JUDGMENT Barin Ghosh, C.J. (Oral) On 10th November, 1984, petitioner No.2 was appointed as Lecturer Mathematics and on 26th November, 1984, petitioner No.1 was appointed as Lecturer Sanskrit in Government Post Graduate College, Pithoragarh and Rudrapur respectively with condition that they shall be entitled to work respectively up to 20th November, 1984 and 20th December, 1984, during which period they shall be entitled to three casual leaves and remuneration of `700/- per month alongwith other allowances. It was indicated that upon furnishing undertaking by the petitioners to abide by those 2 terms, they shall be appointed. On 20th December, 1984, the Director, taking into the fact that appointments, thus, given have come to an end on 20th December, 1984, authorized grant of new appointments on same terms and conditions upto 30th April, 1985 in order to enable completion of the academic session. It was specifically mentioned that no extension would be given. By two orders respectively dated 4th February, 1985 and 26th February, 1985, petitioner Nos. 1 & 2 were appointed on similar terms upto 30th April, 1985. The said letters did not indicate that response to an advertisement resulted in those appointments, nor did they indicate that there was any selection or petitioners were selected. How petitioners came to know that such appointments are available, has not been indicated in the writ petition. While the said appointments were given, it was clearly indicated that no extension will be granted. It is not the case of the petitioners that subsequent thereto any other decision was taken by the Director for extension of their service or for giving them any new appointment. It is also not their contention that the Colleges in question gave them any other appointments. Accordingly, for all practical purposes, it must be deemed that the petitioners stopped functioning as Lecturers of the Colleges in question subsequent to 1st May, 1985. In the present writ petition, the Colleges have not been arrayed as parties deliberately in order to prevent this Court from ascertaining the facts pertaining to discharge of duty by the petitioners in the Colleges in question after 1st May, 1985. 2. Be that as it may, on 14th May, 1979 the U.P. Regularization of Ad hoc Appointments (On Posts within the purview of the Public Service Commission) Rules, 1979 came into force. The said Rules applied to people who were directly appointed on ad hoc basis before 1st January, 1977 and was continuing in service as such on the date of commencement of the said Rules. On 8th September, 1984, Rule 9 was inserted in the said Rules, whereby and under, the provisions of the said Rules applied 3 mutatis mutandis also to any person directly appointed on ad hoc basis on or before 1st May, 1983 and continued in service as such on the date of commencement of Rule 9 of the said Rules, i.e. on 8th September, 1984. 3. Subsequent thereto on 7th August, 1989, Rule 10 was inserted in the said Rules. In terms of Rule 10 of the said Rules, the provisions of the said Rules applied mutatis mutandis also to any person directly appointed on ad hoc basis on or before 1st October, 1986 and continued in service as such on the date of insertion of Rule 10 in the said Rules, i.e. on 7th August, 1989. 4. Petitioners and some others filed a writ petition in the Hon’ble High Court at Allahabad in 1989. On the said writ petition, an interim order was passed on 7th August, 1989, whereby it was directed that the process of selection for the posts held by the petitioners in the said writ petition shall continue but the final results will not be declared and the petitioners will be allowed to continue on the posts in question till the next listing of the case. In the absence of Colleges in question in the present writ petition, it is not possible to gather whether after the said order dated 7th August, 1989 petitioners were permitted to discharge duties of Lecturers in the Colleges in question, and if so how they were permitted to do so and on what basis. 5. Be that as it may, the said writ petition was disposed of finally on 20th August, 1991 when the Hon’ble Allahabad High Court directed consideration of the case of regularization of the petitioners in terms of the provisions contained in the 1979 Rules referred to above. While rendering the said judgment, the Hon’ble Allahabad High Court did not record a finding that the petitioners were appointed on ad hoc basis, and that, if their appointments can be treated as ad hoc appointments, their such ad hoc appointments continued until 7th August, 1989. 4 6. It appears that on 10th June, 1994, by an order, petitioners were regularized. In the regularization order again it had not been mentioned that the petitioners were appointed on ad hoc basis, and that, even if they were appointed on ad hoc basis, their appointments were continuing on 7th August, 1989. This order was passed by the Government of Uttar Pradesh. Since the Government of Uttar Pradesh is not a party to the present writ petition, we have not been able to gather how and on what basis the said regularization was given to the petitioners. 7. Subsequent thereto on 4th January, 1996, once again the Government of Uttar Pradesh passed an order and thereby made the petitioners entitled to the pay scale of Lecturers right from the date they were initially appointed for a period certain. Inasmuch as, the Colleges in question and the U.P. Government are absent in this writ petition, we have not been able to gather how this order dated 4th January, 1996 passed by the Government of Uttar Pradesh was implemented. 8. The fact remains that in the event petitioners were not discharging duties as Lecturers in the Colleges in question until 7th August, 1989, they could not be regularized in terms of the provisions of the said Rules in accordance with the mandate contained therein. There is no finding that the petitioners were continuing to discharge duties of Lecturers until 7th August, 1989. In accordance with the undertaking given by the petitioners, they could not discharge their duties as Lecturers in the Colleges in question on any day on and from 1st May, 1985. 9. Be that as it may, in view of the said order of the Government of Uttar Pradesh dated 10th June, 1994, petitioners were treated as substantively appointed Lecturers of the said Colleges. Subsequent thereto a seniority list was prepared when they were shown to have earned seniority with effect from 10th June, 1994. Petitioners are, therefore, before us in the present writ 5 petition, seeking that their seniority, in the facts and circumstances of the case, should be deemed to be from the date of their initial appointments mentioned above. When the writ petition was considered by a Division Bench of this Court, the Division Bench found that since the petitioners have been made entitled to the pay scale of Lecturers from the date of their initial appointments, they should be deemed to be entitled to seniority also from the date of their initial appointments. The writ petition was, accordingly, allowed. Thereafter the State Government filed a review application seeking review of the order of the Division Bench, which was dismissed by the Division Bench, whereupon the State Government filed Special Leave Petition before the Hon’ble Supreme Court and the same too was dismissed. In the circumstances, the State Government implemented the order of the Division Bench by making a new seniority list. In that, it was shown that the petitioners are entitled to their seniority from the respective dates of their appointments. Noticing the new seniority list, those Lecturers, who joined before 10th June, 1994, sought review of the order of the Division Bench by filing an application contending that when petitioners were regularized in terms of the provisions contained in the said Rules, as would be evident from the order of the Government of Uttar Pradesh dated 10th June, 1994, seniority of the petitioners can only be counted in terms of the mandate contained in Rule 7 of the said Rules from the date of their regularization and not from the date of their initial appointments. Inasmuch as this provision was not considered by the Division Bench and inasmuch as it appeared that the claim in the writ petition hinged on the provisions of the said Rules, a Division Bench of this Court allowed the review application. 10. In the circumstances, the writ petition is being re-heard by us. In law, regularization can only be made provided there is authority to make regularization. Such authority may be bestowed by making statutory or administrative rules. In the instant case, by 6 making the said Rules under proviso to Article 309 of the Constitution of India, the Government of Uttar Pradesh made statutory rules dealing with the subject. When the field was covered by a statutory rule, the authority to regularize could only be exercised on the basis of the provisions contained therein. The said Rules made it absolutely clear in Rule 7 thereof that a person appointed under the said Rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with the said Rules and shall in all cases be placed below people appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed procedure, prior to the appointment of such person under the said Rules. In such view of the matter, when the law governing the field did not authorize the petitioners to count their seniority from a date prior to the date of their regularization, we are of the view that the writ petitioners failed to make out any case in their writ petition requiring interference by this Court, inasmuch as, admittedly petitioners were given in the seniority list challenged in the writ petition from the date of their regularization, i.e. from 10th June, 1994. In the circumstances, the writ petition is liable to be and should be dismissed. 11. We have noticed that the authority to regularize is derived from the said Rules, and that, while regularizing the petitioners, recourse was also taken to the provisions of the said Rules, it, however, does not appear that at any stage any authority applied its mind whether the said Rules were at all applicable to the petitioners. There is no finding until date that the appointments of the petitioners on the dates mentioned above were ad hoc appointments, despite appointments given to them on 20th December, 1984 were only upto 30th April, 1985, which appointments were not to be extended and such appointments had been accepted on the basis of undertaking given by them, or that the 7 petitioners continued to remain appointed until 7th August, 1989 when Rule 10 was inserted to the said Rules. 12. Learned counsel appearing for the State submitted that a Committee has been constituted by the State of Uttarakhand to implement the judgment of the Hon’ble Supreme Court rendered in the case of Secretary, State of Karnataka and others versus Umadevi(3) and others, reported in (2006) 4 S.C.C. 1. We feel that the case of the petitioners must be referred to the said Committee for a finding whether the entry of the petitioners in service was a back door entry and, accordingly, should be interfered with or not. Let the case of the petitioners be referred to the said Committee by the State as quickly as possible but not later than one month from the date of service of a copy of this order upon the Secretary, Higher Education, Government of Uttarakhand. 13. With the direction as above, we dismiss the writ petition. (Servesh Kumar Gupta, J.) ( Barin Ghosh, C.J.) 20.05.2011 20.05.2011 P. Singh