WPSS/3256/2017 of TULSI PRASAD BHATT Vs STATE OF UTTARAKHAND THROUGH SECRETARY, PANCHYATI RAJ

Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (S/S) No.3256 of 2017

Tusli Prasad Bhatt ……Petitioner

versus

State of Uttarakhand & Ors. ….Respondents

Mr. H.C. Bisht, Advocate for the petitioner Mr. Pooran Singh Bisht and Ms. Anjali Bhargava, Addl. C.S.C. along with Mr. N.P. Sah, Standing Counsel for the State.

Hon’ble Lok Pal Singh, J.

Petitioner has approached this Court seeking

the following reliefs:-

(i)Issue writ, order or direction in the nature of certiorari quashing the impugned order dated 20.3.2017 passed by respondent no.2 quashing the impugned order dated 20.3.2017 passed by respondent no.2

(ii)Issue writ, order or direction in the nature of mandamus commanding and directing the respondents to fix the seniority and pay scale of petitioner notionally w.e.f. 21.10.2003 and services rendered by petitioner w.e.f. 21.10.2003 to 01.06.2013 may be counted for the purposes of seniority, pension and other consequential service benefits. mandamus commanding and directing the respondents to fix the seniority and pay scale of petitioner notionally w.e.f. 21.10.2003 and services rendered by petitioner w.e.f. 21.10.2003 to 01.06.2013 may be counted for the purposes of seniority, pension and other consequential service benefits.

2. Brief facts of the case are that petitioner was initially appointed on the post of Tax Collector on contract/adhoc basis in the office of Zila Pachayat vide order dated 21.10.2003. It is alleged that the appointment of the petitioner was against the vacant and substantive vacancy. He served in the department with due diligence and to the utmost satisfaction of the department. He was paid the salary on monthly basis. In the year 2004, services of the petitioner was terminated. Feeling aggrieved, he preferred writ petition being WPSS No.1333 of 2004 before this Court, wherein an interim order dated

22.11.2004 was passed to the following effect “Till 15.02.2005, in case no one is selected for the post of Tax Collector Zila Panchayat, Champawat and work is available, the petitioner shall be permitted to continue”.Thereafter, the services of the petitioner were regularized w.e.f. 1.6.2013. It is stated that the petitioner is continuously working with the respondent w.e.f. 21.10.2003 against vacant and substantive vacancy and has been given regular appointment on 01.06.2013 but the respondents are treating the petitioner as fresh appointee w.e.f. 01.06.2013 and his service for the period 21.10.2003 to 01.06.2013 are not being considered for the purposes of seniority and other service benefits. In this regard, petitioner move several representations before the respondents thereby requesting to fix his pay scale notionally w.e.f. 21.10.2003 and considering his length of service for the benefits of seniority, group insurance, pension and other service benefits, but no decision has been taken thereon.

3. Respondent nos.3 and 4 have filed the counter affidavit denying the averments of the writ petition. It is stated that the petitioner was not appointed in the department as regular employee. He was given substantive appointment on temporary basis on 01.06.2013. It is also stated that the services of the petitioner were terminated on 01.05.2004 and from 01.05.2004 to 07.12.2005, he was not in the services of the respondents. It is also stated that against the termination order, the petitioner had filed the writ petition before this Court, which was subsequently withdrawn by him and by order dated 24.11.2005, the writ petition was dismissed as withdrawn by the Court. It is further stated that the representation of the petitioner was duly

considered by the Director, Panchayati Raj, and has been decided on 20.03.2017 as per law.

4. rejoinder affidavit has been filed by the petitioner denying the averments of the counter affidavit.

5. Learned counsel for the petitioner submits that the case of the petitioner is squarely covered by Full Bench decision of this Court rendered in Madan Mohan Chaudhary vs. State of Uttaranchal and others, reported in 2011 (1) U.D. 6 wherein it was held that an employee who has completed at least 10 years of service against substantive vacancy, either other than regularized capacity, he is entitled to get the pensionary benefits.

6. Per contra, learned Addl. C.S.C. has referred judgment of Division Bench of this Court passed in Special Appeal No.187 of 2014 Bhuwan Chandra Chimwal vs. State of Uttarakhand and others, and analogous matters, decided on 08.09.2014.

7. Heard learned counsel for the parties and perused the material available on record.

8. Indisputably, the petitioner was appointed on contract basis in the department on 21.10.2003. On 01.05.2004, his services were terminated whereagainst he filed writ petition before this Court. Although the petitioner has apprised the Court through pleadings that in the said writ petition, an interim order was passed in his favour by the Court vide order dated 22.11.2004, but he has suppressed the material fact from the Court that subsequently the said writ petition was dismissed as withdrawn by the Court vide order dated 24.11.2005 and

it is thereafter that the petitioner was again re-engaged in the department on contract basis. The petitioner has also suppressed the material fact that during the period 01.05.2004 to 07.12.2005, he was not under the services of the respondent Department. In the instant case, the petitioner, who is seeking parity, has not approached this Court with clean hands. The obligation to approach the Court with clean hands is an absolute obligation.

9. Hon’ble Apex Court in the case of {K.D. Sharma v. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481] has held as under:-

“If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and `clean breast' cannot hold writ of the Court with ‘soiled hands'. Suppression or concealment of material facts is not an advocacy. It is jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.”

10. On suppression of material fact, learned counsel for the petitioner has vehemently argued that this writ petition was originally filed by another lawyer, who is not pursuing the case now. Therefore, there is no suppression on his behalf. Admittedly, there is suppression of facts in the present writ petition. It is not attached with particular lawyer. This Court has not

observed that Mr. H.C. Bisht, Advocate has suppressed any material fact from this Court. Suppression of material facts is considered on the part of the petitioner, and not by the counsel who filed the petition.

11. Insofar as the judgment cited by learned counsel for the petitioner, the same is not applicable to the facts and circumstances of the present case and is, therefore, no help to the petitioner. As regards the judgment of Bhuwan Chandra Chimwal (supra) as referred by learned counsel for the respondent, in this decision, the Division Bench has declined to grant similar relief to the appellants, as the petitioner is claiming in the instant writ petition.

12. Reverting to the merits of the case, the submission of learned counsel for the petitioner that the services rendered by the petitioner before his regularization is liable to be counted for pensionary benefits, it is established on record that the petitioner was appointed on the post of Tax Collector on adhoc basis on 21.10.2003 and on 01.05.2004 his services were terminated. Thereafter, on 08.12.2005, again he was appointed on adhoc basis. By Notification dated 25.10.2005, the new pension scheme came into force w.e.f. 01.10.2005, which provided that the new defined contribution pensions system would mandatorily apply to all the new recruits to the service of the State Government and of all State-controlled autonomous/State aided private education institutions.. That being the position, no relief can be granted to the petitioner.

13. While deciding the representation of the petitioner vide order dated 20.03.2017, Director,

Panchayati Raj, Dehradun, has also observed that by order dated 01.06.2013, petitioner has been given appointment on the pay scale of 5200-20200 grade pay 1800, on temporary basis, but it is not clear as to under which rules or regulations the petitioner has been appointed. The petitioner was appointed without adopting due process of law. It appears to this Court also that the appointment of the petitioner was made through back-door entry. On merit, petitioner has failed to make out case for interference by this Court. The Director, Panchayati Raj, has rejected the representation of the petitioner by well reasoned and speaking order. This Court does not find any illegality in the same.

14. In view of foregoing discussion, there is no merit in the writ petition. Writ petition is dismissed accordingly. No order as to costs.

Rajni

(Lok Pal Singh, J.)

08.09.2020