IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 112 of 2010 State of Uttarakhand and others ……… Appellants. Versus Sanjay Kumar and others .………. Respondents. Mr. K.P. Upadhyaya, Advocate for the appellants. Mr. Rakesh Thapliyal, Advocate for the respondents Date of Judgment: 07.07.2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) Through a Government Order dated 14.07.2005, the State Government issued a direction, that the vacant posts in Class IV service to fill up exclusively from amongst persons who were already working in the department on part-time basis and/or from amongst surplus employees. Thereafter, the State Government sanctioned 13 temporary posts in Class IV service vide an order dated 22.08.2005 in the State Ayurvedic Hospitals. Through the instant order, the direction contained in the earlier order dated 14.07.2005 was reiterated, in as much as it was again asserted, that the vacant posts in Class IV service were to be filled up exclusively from amongst persons who were already working in the department on part-time basis and/or from amongst surplus employees. 2. Following the directions contained in the aforesaid Government Orders dated 14.07.2005 and 22.08.2005, District Ayurvedic and Unani Officers, who were appointing authorities for posts in Class IV service, convened a process of selection, wherein the zone of selection was limited to those working in the department on part-time basis and / or surplus employees. On the basis of suitability determined by the process of selection, the respondents herein came to be absorbed against vacant posts in Class IV service in the year 2006. 2 3. Thereafter, by an order dated 27.07.2007 the services of the respondents were terminated. The aforesaid order dated 27.07.2007 was assailed by the respondents by filing Writ Petition (S/S) No. 1103 of 2008. The aforesaid writ petition was allowed by a learned Single Judge of this Court on 26.11.2009. Through the instant Special Appeal, the order passed by the learned Single Judge on 26.11.2009, allowing Writ Petition (S/S) No. 1103 of 2008, has been challenged at the hands of the State of Uttarakhand. 4. In order to complete the sequence of events, it is necessary to notice, that the order dated 27.07.2007, terminating the services of the respondents, was issued on the basis of an order dated 23.07.2007 communicated to District Ayurvedic and Unani Officers by the Director, Ayurvedic and Unani Services, Uttarakhand. The Director, Ayurvedic and Unani Services had issued the aforesaid order dated 23.07.2007, on the basis of letter of the Principal Secretary, Medical, Health, Family Welfare, Government of Uttarakhand, Dehradun dated 12.07.2007. Through the aforesaid letter dated 12.07.2007, the Director, Ayurvedic and Unani Services had been directed to terminate the services of such of those Class IV employees, who had been illegally appointed. It is, therefore, that the order dated 23.07.2007 was issued by the Director, Department of Ayurvedic and Unani Services, Uttarakhand to the concerned District Ayurvedic and Unani Officers. 5. The learned Single Judge allowed Writ Petition (S/S) No. 1103 of 2008 on two counts. Firstly, because the directions issued by the Principal Secretary, Medical, Health, Family Welfare, Government of Uttarakhand were taken into consideration only to mechanically order the termination of the respondents without due application of mind, in as much as no finding was recorded in the case of any of the respondents, that their appointment was illegal. Secondly, the learned Single Judge was of the view, that as a consequence of their absorption into service in 2006, certain civil rights came to be vested in them. The termination of 3 the respondents, in the aforesaid view of the matter without following the rules of natural justice, was, therefore, held to be unacceptable in law. 6. During the course of hearing, learned counsel for the appellants did not assail any of the aforesaid two basis, taken into consideration by the learned Single Judge in allowing Writ Petition (S/S) No. 1103 of 2008. In view of the above, we therefore find no justification, whatsoever, to interfere in the impugned order passed by the learned Single Judge on 26.11.2009, allowing Writ Petition (S/S) No. 1103 of 2008. 7. Despite the conclusion recorded by us hereinabove, learned counsel for the appellants, having referred to the orders dated 14.07.2005 and 22.08.2005, while acknowledging that the aforesaid orders required the appointing authorities to limit the process of selection for appointment to vacant Class IV posts only to those already working in the department on part-time basis and / or from amongst surplus employees; yet the aforesaid Government Orders also expressly mentioned, that the process of appointment would be made in accordance with the prevalent rules. In this behalf, learned counsel for the appellants has drawn our attention to the Group ‘D’ Employees Service Rules, 2004 (hereinafter referred to as the 2004 Rules), so as to assert, that various provisions of the aforesaid 2004 Rules were not complied with. Pointed attention of the Court was invited by the learned counsel for the appellants to Rules 3, 6, 15, 20 and 21 of the 2004 Rules. The rules relied upon by the learned counsel for the appellants are being extracted hereunder: “3. Overriding effect of these rules – In the event of any inconsistence in between these rules and specific rule or rules pertaining to any of the aforesaid posts in any department - (One) the provisions, contained in these rules shall prevail to extent to the inconsistency in case the specific rules were made prior to the commencement of these rules; and (Two) the provisions, contained in the specific rules shall prevail in case they are made after the commencement of these rules. 6. Sources of recruitment – The sources of recruitment to the various categories of Group ‘D’ posts shall be as follows: - (a) Peon, Messenger, Chaukidar, By direct recruitment; Mali, Farrash, Sweeper, Water- man, Bhisti, Tindal, Thela- 4 man, Recordlifter, and every other non-technical post (b) Peon-Jamadar By promotion from amongst permanent peons; (c) Daftri/Book-binder/ By promotion from amongst Cyclostyle Operator qualified Peons, Messenger and Farrashs; (d) Farrash-Jamadar By promotion from amongst permanent Farrashs; (e) Sweeper-Jamadar By promotion from amongst permanent Sweepers; (f) Head Mali By promotion from amongst permanent Malis: Provided that where no eligible/suitable candidate is available for promotion to a particular post which is required to be filled by promotion, the post may be filled by direct recruitment. 15. Constitution of Selection Committee – Direct recruitment shall be made by a Selection Committee comprising - (1) Appointing Authority. (2) An officer belonging to Scheduled Castes/ Scheduled Tribes, nominated by the appointing authority if the appointing authority does not belong to Scheduled Castes / Scheduled Tribes. If the appointing authority belongs to Scheduled Castes / Scheduled Tribes, an officer other than belonging to Scheduled Castes/ Scheduled Tribes or other Backward Classes shall be nominated by the appointing authority: Rule as hereby substituted: Provided that if such suitable officer is not available in his department or organization such officer shall, on the request of the appointing authority, be nominated by the District Magistrate and on his failure to do so, by reason of non availability of suitable officer, such officer shall be nominated by the Divisional Commissioner. 20. Appointment – (1) On the occurrence of substantive vacancies the appointing authority shall make appointments from the list of candidates prepared under Rule 21 or Rule 22, as the case may be, in the order in which their names appear in the list. (2) The appointing authority shall also made appointment in officiating and temporary vacancies from the said list and in the manner referred to in sub-rule (1). 21. Probation – (1) A person on appointment to a post in the establishment in the permanent vacancy shall be placed on probation for a period of one year: Provided that continuous service rendered in a officiating or temporary capacity in a post borne on the Establishment may be taken into account in computing the period of probation for the post: Provided further that the appointing authority may, for reasons to be recorded, extend the period of probation in individual cases specifying the date upto extension is granted: 5 Provided also that the period of probation shall not be extended beyond one year. (2) If it appears to the appointing authority at any time during or at the end of the period of probation or extended period of probation that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be reverted to a post, on which he holds a lien or if he does not hold a lien on any post, his service may be dispensed with without entitling him to any compensation in either case.” 8. It is not possible for us to accept the instant contention advanced by the learned counsel for the appellants, so as to arrive at the conclusion, that the appointment of the respondents was not in consonance with the provisions of the 2004 Rules. In this behalf, it is relevant to refer to Rule 28 of the 2004 Rules. Rule 28 is being extracted hereunder: “28. Relaxation from conditions of service – Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the Establishment causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.” Based on Rule 28 alone, the orders dated 14.07.2005/22.08.2005 could be issued. The same must, therefore, be deemed to have been issued under Rule 28 of the 2004 Rules. Since the Government was permitted to relax the provisions of the 2004 Rules, the appellants, by a conscious application of mind, passed the aforesaid orders, limiting the process of selection by direct recruitment only to those employees who were working in the department on part-time basis and / or from amongst surplus employees. The aforesaid orders must have been passed keeping in view the hardship suffered by employees, who were rendering service on part- time basis or those who had been declared surplus. Having taken the aforesaid decision, it does not lie in the mouth of the appellants themselves, to rescind their earlier determination, on the basis of which appointment/absorption orders were issued in favour of the respondents. 9. For the reasons recorded hereinabove, we find no merit in this appeal and the same is accordingly hereby dismissed. 6 10. In view of the fact, that this Court has arrived at the conclusion that there is no merit in the Special Appeal, it is not necessary for us to pass any formal order disposing of the application for condonation of delay preferred by the appellants. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 07.07.2010 07.07.2010 Amit