DR. JAIPAL vs THE STATE OF UTTARAKHAND - 2024-01-11

O R D E R

1. The appellant has challenged the order dated 18th May, 2011 passed by a Division Bench of the High Court of Uttarakhand at Nainital on a writ petition1 filed by him being aggrieved by the order dated 05th December, 2009 passed by the Vice Chancellor of the respondent No.2 - University informing the Principal of the respondent No.3-College that the seniority determined by the College in respect of the appellant and the respondent No.4 stands annulled and instead, the respondent No.4’s seniority stands reckoned from 26th March, 1998 (the date of his regularization) whereas that of the appellant is effective from 27th December, 1999 (from the date of his appointment). In other words, the respondent No.4 was declared as senior to the appellant herein, both working in the Department of Maths in the respondent No.3-College.

2. Some clarity on facts is required. Respondent No.4 was appointed as a lecturer in the respondent No.3 – College on an ad hoc basis on 04th April, 1991. On 22nd November, 1991, a ban was imposed on appointment of any lecturers in the affiliated Government Aided colleges including the respondent No.3 – College. The said ban was subsequently converted into a Statute (i.e. U.P. Higher Education Service Commission Act, 1980). The Statute was amended in 1997 (i.e. U.P. Higher Education Services Committee Amendment Act, 1997) and it was

1 Writ Petition No. 287/09 (SB)

decided that a Committee would be constituted by the State of Uttar Pradesh for scrutinizing the cases of those persons who have been appointed on an ad hoc basis in different affiliated Government Aided colleges prior to 22nd November, 1991.

3. A Committee was accordingly constituted and it considered the case of several people including the respondent No.4. Vide its report dated 06th March, 1998, the Committee recommended granting a substantive appointment to the respondent No.4 and called upon the respondent No.3 – College to issue him a formal letter. However, no such letter was issued by the respondent No.3 – College regularizing the services of the respondent No.4. Pertinently, the respondent No.4 did not raise this issue of non-issuance of a letter despite the recommendation of the Committee, by approaching the court of law. In the meantime, the appellant was selected and recommended to the post of Lecturer in the respondent No.3 – College. Vide letter dated

16th December, 1999, he was appointed to the subject post on 27th December, 1999.

4. On 09th November, 2000, the State of Uttarakhand was carved out of the State of Uttar Pradesh. The State of Uttarakhand undertook an exercise of examining cases for regularization of ad hoc Lecturers in similarly situated Colleges within its territory by appointing a Committee. The Committee submitted its report on 02nd June, 2003 wherein it was held that respondent No.4 was ineligible for a regular appointment to the post of a Lecturer, as he did not possess the requisite eligibility. Thereafter, the Selection Committee undertook a fresh deliberation and reviewed the cases of those ad hoc Lecturers who were appointed in non-Government Colleges of the State and those who were regularized by the State of Uttar Pradesh in the year 1998. On the basis of the said deliberations, a fresh official communication was issued on 22nd August, 2003 wherein, the case of the respondent No.4 was also considered and it was observed that though he was not academically eligible but having regard to the long period of services put in by him and the earlier regularization done by the State of Uttar Pradesh, his services were also regularized on humanitarian grounds along with three other Lecturers working in different colleges in Dehradun.

5. Based on the aforesaid recommendations, the services of the respondent No.4 were regularized by the respondent No.1 vide communication dated 28th August, 2003. Approximately, six years thereafter, a seniority list was prepared by the respondent No.3 – College wherein, the name of the appellant was shown as senior to that of respondent No.4. It was observed that the seniority of respondent No.4 will be counted from the date of his regularization, i.e. 28th August, 2003 as it was this order by which his services were regularized and that of the appellant would be counted from the date of his appointment i.e. 27th December, 1999.

6. Dissatisfied by the aforesaid decision, respondent No.4 preferred an appeal before the Vice Chancellor of the respondent No.2-University. The said representation was disposed of by virtue of a communication dated 05th December, 2009 addressed to the respondent No.3- College declaring that respondent No.4 was senior to the appellant. The said order was assailed by the appellant before the High Court and the challenge laid was rejected on the ground that for all practical purposes, the respondent No.4 was deemed to have been regularized on the date of communication of the decision of the State Government, accepting the recommendations made by the Committee constituted under the Statute, i.e. w.e.f. 06th March, 1998 and not from 28th February, 2003.

7. We may note that learned counsel for the respondent No.4 seeks to rely on a letter dated

25th July, 2009, addressed by the Director of Higher Education to the respondent No.3-College stating inter alia that the respondent No.4 was regularized on 06th March, 1998 and therefore, his date of regularization ought to be taken as 26th March, 1998. We are afraid the aforesaid letter cannot be of any assistance to the respondent No.4 particularly, when the Selection Committee constituted under the Statute had specifically observed in respect of the respondent No.4 that he was not eligible academically and was regularized only on humanitarian grounds. The said recommendations made by the Committee constituted under the Statute could not have been bypassed by virtue of the letter dated 25th July, 2009 issued by the respondent No.1 to the respondent No.3-College.

8. We are, therefore of the opinion that the impugned judgment cannot be sustained and is, accordingly, quashed and set aside. Fact of the matter is that the services of the respondent No.4 were regularized w.e.f. 28th August, 2003 whereas, the appellant was appointed in the respondent No.3 – College prior to him on 27th December, 1999.

9. Accordingly, the seniority list dated 24th June, 2009 declared by the respondent No.3-College reflecting the correct position is restored to its original position.

10. The appeals are allowed on the aforesaid terms. The parties are left to bear their own expenses.

……………………….......................J .

(HIMA KOHLI )

……………………….......................J .

(AHSANUDDIN AMANULLAH )

NEW DELH I

11th JANUARY, 202 4 ITEM NO.102 COURT NO.11 SECTION X S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDING S CIVIL APPEALS NO. 6709-6710/201 3 DR. JAIPAL Appellant(s )

VERSU S THE STATE OF UTTARAKHAND & ORS. Respondent(s )

Date : 11-01-2024 These appeals were called on for hearing today .

CORAM :

HON'BLE MS. JUSTICE HIMA KOHL I HON'BLE MR. JUSTICE AHSANUDDIN AMANULLA H For Appellant(s) Mr. U.K Uniyal, Sr. Adv .

Mr. Dinesh Kumar Garg, AO R Mr. Abhishek Garg, Adv .

Mr. Dhananjay Garg, Adv .

Ms. Ishita Bist, Adv .

Mr. Ishaan Tiwari, Adv .

Mr. R.P Bansal, Adv .

Mr. Chanakya Gupta, Adv .

For Respondent(s) Mr. Atul Sharma, AO R Mr. Vikas Negi, Adv .

Mr. Md. Farman, AO R Mr. Salman Khan, Adv .

Mr. Aditya Tanwar, Adv .

Ms. Shalu Bhati, Adv .

UPON hearing the counsel the court made the followin g

O R D E R

The appeals are allowed in terms of the signed order.

(Geeta Ahuja) (Nand Kishor )

Assistant Registrar-cum-PS Court Master (NSH )

(Signed Order is placed on the file)