State of U.P. Now State of Uttaranchal & Ors. v. Bhuwan Chandra Pathak & Ors.

Sri K.P. Upadhyaya, learned Standing Counsel for petitioners. Sri Vikas Pandey, holding brief for Sri V.B.S, Negi, Advocate for respondent No. 1. Coram: Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: 01-05-2006 The State of Uttaranchal has sought the relief by way of this writ petition for issuing a writ in the nature of certiorari quashing the impugned award dated 2-7-2002 passed by the Public Service Tribunal, Uttaranchal. 2- Brief facts of the present case, as projected by the petition, are that the respondent No.1, Bhuwan Chandra Pathak, was appointed as Library Attendant vide order dated 30-12-1982 for a period of three months. The Polytechnic was an autonomous body and was not a Government Institution till 11-3-1987, as this Polytechnic was taken over by the State Government on 12-3-

#1987. The entire staff working on the particular post in the 2 erstwhile Polytechnic were also taken over by the Government and became the employees of the State Government including the petitioner Bhuwan Chandra Pathak who was working at the time of provincialization of the institution. 3- On 1-2-1993 due to retirement of one Prem Singh Arya, Lab Assistant, the respondent No.1 was handed over charge by way of temporary arrangement. The order dated 1-2-1993 was passed by the Principal of Government Polytechnic directing the respondent No.1 to take over the charge of the articles of Chemistry Lab from retiring person Prem Singh Arya. 4- The respondent No.1 claimed his promotion on the post of Lab Assistant from sports quota and submitted his application before the departmental authority but he was ultimately not found eligible for promotion as he was not qualified for the appointment on the post of Lab Assistant. The respondent No.1 was not High School pass whereas the required qualification for the post of Lab Assistant was Intermediate. The respondent No.1 moved the representation asking himself to be posted as Lab Assistant on the ground that he had been working as a Lab Attendant and he should be given promotion on the post of Lab Assistant under the sports quota. 5- The respondent No.1 on account of rejection of his claim, filed a suit before the District Judge, Nainital, which was ultimately found not maintainable. The respondent No.1 was accordingly directed to file the claim petition before the Public Service Tribunal. He accordingly filed the claim petition before the Public Service Tribunal, which was allowed vide impugned award dated 2-7-2002. The Tribunal directed the State of Uttaranchal to grant all the due wages of the post of Lab Assistant to the respondent No.1 w.e.f. 1st of February, 1993, till the period the department has taken the work from him. 6- Feeling aggrieved by the aforesaid impugned award dated

2.7.2002 (Annexure- 14 the writ petition), the State of Uttaranchal has filed the present writ petition before this Court. 7- Heard Sri K.P. Upadhyaya learned Standing Counsel on behalf of the petitioners, Sri Vikas Pandey, holding brief for Sri 3 V.B.S. Negi, Advocate for the respondent No.1 and perused the record. 8- The short point to be decided in this matter is – whether the respondent No.1 had ever been appointed on the post of Lab Attendant in the then Polytechnic, Nainital. 9- There is nothing on the record which may reveal that the respondent No.1 had ever been appointed as Lab Attendant. Our attention has been invited towards the order dated 1.2.1993 by which the temporary arrangement has been made by the Principal of the Polytechnic on account of retirement of one Prem Singh Arya, Lab Assistant. This letter shows that respondent No.1 Bhuwan Chandra Pathak had been working as a Library Attendant and he was directed to take over the charge of the articles of Chemistry Lab from the retiring Lab Assistant Prem Singh Arya by way of a temporary arrangement. The respondent No.1 Bhuwan Chandra Pathak was also directed to get the list of all the articles in the Chemistry Lab, countersigned by the Lecturer Chemistry and to work in the Lab. This letter nowhere indicates that Bhuwan Chandra Pathak had ever been appointed on the post of Lab Attendant. The learned Tribunal has committed an error of law and facts in holding that the respondent No.1 has been working as Lab Assistant since 1-2-1993 and the department has been taking the work from respondent No.1 as Lab Assistant, as there is no evidence on record to this effect. Annexure-3 to the writ petition is the representation made by respondent No.1, which reveals that respondent No.1 has been designating himself as Lab Attendant. There is no evidence on record that the department has been taking the work of the Lab Assistant from respondent No.1. 10- Considering the aforesaid position, it is quite clear that respondent No.1 had never been appointed to the post of Lab Attendant, rather he had been appointed as Library Attendant and was given the charge of the Lab Attendant by way of temporary arrangement on account of retirement of Prem Singh Arya, Lab Assistant. There is no evidence available on the record which may suggest that the respondent No.1 had been working as Lab 4 Assistant. The finding recorded by the Tribunal is thus not sustainable in the eye of law. The learned Tribunal has drawn a wrong conclusion in allowing the claim of respondent No.1 and issuing direction to the department to grant all the due wages of the post of Lab Assistant to respondent No.1 w.e.f. 1st of February, 1993 till the period the respondent No.1 has worked on the post of Lab Assistant. 11- The writ petition is allowed. The impugned award dated

2.7.2002 (Annexure 14 to the writ petition) passed by respondent No.2, i.e. Public Service Tribunal, Uttaranchal, is hereby quashed. It is made clear that the amount, which has already been paid to respondent No.1 in compliance of the order passed by this Court, shall be adjusted towards the future salary to be paid to respondent (B.C. Kandpal, J.) (P.C. Verma, J.) No.1. ISB