IN THE COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 624 of 2010 (S/S) Gopal Ram ...Petitioner Versus State of Uttarakhand and others … Respondents Present: Mr. S.S. Yadav, Advocate for the petitioner. Mr. P.S. Bisht, Brief Holder for the State of Uttarakhand. Dated: 3rd April, 2018 JUDGMENT Hon’ble Sharad Kumar Sharma, J. Heard Mr. S.S. Yadav, learned counsel for the petitioner as well as Mr. P.S. Bisht, learned Brief Holder for the State of Uttarakhand. None appears for respondent No. 4, though he is represented by Mr. M.C. Kandpal, Senior Advocate in the writ petition. The brief facts of the case, which are being agitated by the petitioner in the present writ petition, are that he alleges that he is a Hindi Stenographer certificate holder from I.T.I. Almora, a certificate was issued in his favour to the said effect on 06.11.1987. Since at the relevant time, when he was engaged in private work, after getting knowledge about the availability of vacancy of Stenographer, Hindi on the creation of Tehsil Kapkot, District Bageshwar, District Administration decided to fill the post by holding oral / temporary test. He sought his appointment against the vacant post of Stenographer in the scale of Rs.4,000-6,000/-, for which he submitted an application. 2 It is the submission of the learned counsel for the petitioner that his claim for appointment was considered by the respondents and they passed the order dated 22nd June, 1998, whereby, the petitioner was granted an appointment exclusively on temporary basis with a rider that the appointment was to continue till regularly selected candidate joins into the services. There was also a rider attach to it, that no claim to the contrary of any nature whatsoever would be tenable at the behest of the petitioner claiming a relief for regularization of his services. Meaning thereby, at the time when the petitioner accepted appointment based on the conditions of the letter of appointment on 22nd June, 1998, he was equally bound by the terms and conditions of the said letter of appointment and later on, he could not have resiled from the same, as his action would be barred by estoppel and acquiescence. The petitioner submits that though he was appointed on 22nd June, 1998, but the appointment was made only for a period of 89 days, and it was continued from time to time after giving artificial breaks in the services and he was again appointed afresh. Consequently, as a result of break, he worked with respondents w.e.f 3rd July, 1998 to 30th September, 1998 and thereafter from 6th October, 1998 to 15th July, 1999. It is the specific case of the petitioner, as pleaded in para 5 of the writ petition, which is quoted hereunder :- “That since 15/07/1999 the service of the petitioner has been not extended and by Sub Divisional Magistrate orally he was restrained to work as Stenographer Hindi.” 3 It is admitted case based on pleading that w.e.f. 15th July, 1999, the services of the petitioner was not extended by the S.D.M. and according to him, he was orally restrained to work as Stenographer Hindi. However, in para 6 the writ petition, he has stated that on account of the fact that till the date his removal, i.e. 15th July, 1998, the process of regular appointment was not undertaken by the respondent and there was a need of Hindi Stenographer because the work was being effected. Consequently, he contends that he was permitted to work by the respondents authorities. Though there is no proof brought on record by the petitioner to the said fact. He submits that based on oral request, he continued to work so till December, 1999. However, he admits that no salary was paid in lieu thereof. It is based on the said premise, he submits that when his services were discontinued despite there being vacancy, he has filed a representation before the D.M. on 6th May, 2001 claiming for regularization of his services and simultaneously he has also submitted representation before the S.C. & S.T. Commission on 24.04.2001 for the identical relief. At this stage, it is relevant to point out that admittedly according to the petitioner’s own case, his services were dispensed with on 15th July, 1999 and for the first time, he has submitted his representation for regularization before the D.M. only on 16th May, 2001. In the meantime, the respondents so as to fill the vacancy by regular appointment, the respondents had issued an advertisement on 31st August, 1998, for making a regular appointment on the post of Hindi Stenographer. 4 Learned counsel for the petitioner would submit that the process of selection as culminated in pursuance to the advertisement dated 31st August, 1998 was dehors to the procedure as the post which was available was required to be filled in by candidate belonging to a Scheduled Castes and hence he submits that the appointment of respondent No. 4 who belongs to the general category candidate was contrary to the reservation laws. It is an admitted case of the petitioner that he preferred a Writ Petition No. 3387 (S/S) of 2001, and sought the reliefs to the following effects :- “A. Issue a writ or order or direction in the nature of mandamus commanding the respondents to regularize the petitioner in service or treat the petitioner in service in the Revenue department of Distt. Bageshwar (Annexure no.9) to this petition as a Stenographer (Hindi) Class IIIrd Post. B. Issue a writ order or direction in the nature of mandamus or another suitable writ or direction forthwith to the respondents commanding the respondents to pay the amount of Rs.6345/- with interest @ 18% per annum lying with the respondents to the petitioner forthwith. C. Issue any other suitable writ, order or direction or command of which the Hon’ble Court may deem fit and proper in the circumstances of the case. D. Award the cost of the writ petition to the petitioner.” The said writ petition has been disposed of by this Court on 19th November, 2005. In the writ petition, thus preferred by the petitioner, in para 9 of the said writ petition, he has admitted the fact that his services has been terminated suo moto without giving notice to the petitioner. 5 Yet, when he filed Writ Petition No. 3387 (S/S) of 2001, he has chosen not the challenge the order of termination. Meaning thereby, he acquired his rights to challenge his termination. It is revealed that when the Writ Petition No. 3387 of 2001 came up for consideration before this Court, the same was disposed of by the order dated 19th November, 2005, issuing direction to the authorities to consider the case of the petitioner for regularization in accordance with the U.P. Regularization of Adhoc Appointments (on Posts Outside the Purview of Public Service Commission) Rules, 1979. The direction as given by this Court vide its judgment dated 19.11.2005, seems to have passed without bringing to the knowledge of the Court the pleading of para 9 of the Writ Petition, that the services of petitioner already stood terminated. And so far termination is not challenged and set aside, there could not be a direction to consider regularization because regularization could be considered of an employee who is already in job and not of a terminated employee. It is the case of the petitioner that after the decision being rendered on 19.11.2005, he filed a representation alongwith a certified copy of the order alleging the anomalies which he contends to have chanced in undertaking the process of regular selection and appointment of respondent No. 4. The respondent No. 2, by the impugned order dated 6th October, 2006, had dismissed the claim of regularization of the petitioner. It is this order which is impugned in the present writ petition by the petitioner. 6 The District Magistrate, Bageshwar while passing the impugned order, after considering the impact of the amendment as made by the Government of Uttarakhand, under the Rules of Regularization as framed in 2002, has held that the claim of the petitioner for regularization could not be accepted. Admittedly, this order has been passed as back as on 6th October, 2006, despite of the fact that the order was solicited by petitioner in pursuance to the earlier order passed by this Court on 19th November, 2005, in his Writ Petition. The petitioner sat over the issue and did not agitate his cause before this Court within appropriate time rather he preferred a writ petition only on 2nd August, 2010 against order dated 06.10.2006 at a belated stage and almost after a lapse of four years. On scrutiny of the writ petition, there is nothing on record as pleaded by the petitioner as to what were the reasons which attributed in delayed filing of the writ petition by the petitioner before this Court. More particularly, when during intervening period based on selection, respondent No. 4 has been regularly appointed, he joined and is working and now there is no post available. Looking to the fact that as no right of the petitioner has accrued in pursuance to his temporary appointment made in his favour in terms of letter of appointment issued on 22nd June, 1998, coupled with fact that since his services has already been dispensed with by the respondents way back on 15th April, 1999 and since the petitioner has acceded to the said order of termination, had not challenged the same, hence, he has acquiescenced his right to be 7 considered for regularization without giving challenge to the order of termination. For the reasons assigned above, this Court feels that the writ petition lacks merit and is accordingly dismissed. No order as to costs. (Sharad Kumar Sharma, J.) 03.04.2018 Shiv