HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 3661 (S/S) of 2017

Virendra Singh --------------Petitioner

Versus

State of Uttarakhand and others ----------Respondents

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Presence:-

Mr. M.C.Pant through V.C. and Mr. Deepak Joshi, learned counsel

for the petitioner.

Mr. Naveen Tiwari, Brief Holder for the State of Uttarakhand.

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Hon’ble Mr. Subhash Upadhyay, J.

The petitioner has filed the present Writ

Petition with the following prayers:

(i) Issue a writ rule, order or direction in the nature of

certiorari quashing the impugned order dated 05.09.2017 after calling the entire record along with its effect and operation also and also the rules of regularization rules prescribing the condition the existence of sanctioned and vacant post for the purpose of regularization and the same requirement for considering the regularization of an employee and reading down the same as per the mandate of the Hon’ble Apex Court, so the legitimate and lawful claim of the bona fide employee may not be defeated on account of bureaucratic veil in view of the facts highlighted

in the body of petition.

(ii) Issue writ, rule or direction in the nature of mandamus

declaring the appointment of the petitioner as permanent and regular and against a permanent and regular work along with all consequential benefit had it been the impugned order was never in existence and the inaction of the State Government for not taking decision on the recommendation for sanctioning and creation of post is arbitrary and amounts to exploiting the employees and such inaction is itself treated to be a declaration for

granting the benefit of regular status and deeming fiction of existence of post and implied sanctioned for consideration of legitimate right of the employees.

2. Learned counsel for the petitioner submits that the petitioner was appointed initially on contract basis on consolidated salary of Rs. 1600/- per month as Driver in District Rural Development Agency, Dehradun (DRDA) vide its order dated 27.08.1992; initially the said appointment was for a period of 89 days, which was extended from time to time. The petitioner filed Writ Petition No. 983 (S/S) 2007 seeking regularization of his service. In the said case, the following order was passed:

“1. Heard Mr. C.D. Bahuguha, Senior Advocate assisted by Mr. A.K. Verma, learned counsel for the petitioner, Mr. B.P.S.

Mer, Brief Holder for the State and perused the records.

2. It is the case of petitioner that he was appointed on consolidated salary of Rs.1600/- per month as Driver in District Rural Development Agency, Dehradun (in short “DRDA”) vide order dated 27.08.1992, which was further extended upto 26.11.1992. The said appointment was for 89 days, which was extended from time to time.

3. Mr. C.D. Bahuguna, Senior Advocate appearing for petitioner submits that petitioner is serving continuously as Driver in DRDA, Dehradun, however, his claim for regularization has not been considered so far. Learned Senior Counsel submits that petitioner is being given minimum of pay scale w.e.f. 23.03.2000 pursuant to interim order dated 09.03.2000 passed by Allahabad High Court in C.M. Writ Petition No. 6325 of 1997.

Learned Senior Advocate further submits that one vacancy on a sanctioned post of Driver had occurred in DRDA, Dehradun in the year 2003 and thereafter one more vacancy had occurred on a sanctioned post of driver in the year 2014. Thus it is the case of petitioner that his services ought to have been regularized against one of these two vacancies and his grievance is that his claim is not being considered in terms of the Regularization Rules of 2013.

4. A counter affidavit has been filed on behalf of the Commissioner Rural Development in the year 2008 in which it has been stated that presently no vacancy is available on the post of Driver. Learned Senior Counsel has referred to a letter