Pratap Singh Bhauriyal v. State of Uttarakhand & Ors.

Sri Subhash Upadhyaya, the learned Brief Holder for the State of Uttarakhand and Sri Manish Dalakoti, the learned counsel holding the brief of Sri D. S. Patni, the learned counsel for the respondent no.3.

#2. The petitioner was appointed in the Municipal Board, Nainital in the year 1966 and, by an order of the Municipal Board, Nainital dated 04th June, 1987, the petitioner was directed to work as a Revenue Tax Inspector. This order of the Municipal Board was passed in compliance of the order of the Commissioner, Kumaon Division, Nainital dated 04th June, 1987. The petitioner, accordingly, started working as a Revenue Tax Inspector on a temporary basis. The post of a Revenue Tax Inspector is a centralized post and is governed under the U.P. Palika (Centralised) Services Rules, 1966 (hereinafter referred as Rules of 1966). The post was required to be sanctioned by the State Government since there was a requirement of work. The Municipal Board requested the State Government to sanction the post since the petitioner had continued to work on this post for a considerable period of time. Since this was not done, the petitioner filed a writ petition No.131 of 2002 (S/B) praying for the regularisation of his services on the post of Revenue Tax Inspector and also prayed for payment of salary on the post of Revenue Tax Inspector w.e.f. 04th June, 1987 onwards. During the pendency of the aforesaid writ petition, the post of Revenue Tax Inspector was created in the Municipal Board, Nainital and instead of 2 absorbing or appointing or promoting the petitioner on the post of Revenue Tax Inspector, the State Government chose to transfer one Subhash Chandra Rastogi from Kashipur to Nainital on the said post. This transfer order was challenged by the petitioner in Writ Petition No.1189 of 2002 (S/B) in which an interim order was granted directing the State Government to transfer the petitioner as a Revenue Tax Inspector in any Municipal Board and, only then Subhash Chandra Rastogi would be allowed to join as a Revenue Tax Inspector, Nainital. It transpires that this order was never complied with and no person was posted as a Revenue Tax Inspector and the petitioner continued to work as a Revenue Tax Inspector in the Municipal Board, Nainital. Eventually, the writ petition No.131 of 2002 (S/B) was disposed of by an order dated 04th June, 2003 directing the Secretary, Nagar Vikas Avam Awas, Dehradun to consider the case of the petitioner for payment of salary as well as regularisation of his services. Based on the aforesaid direction, the Secretary, by the impugned order dated 23rd September, 2003, rejected the claim of the petitioner either for regularisation or for payment of salary. The petitioner, being aggrieved, has filed the present writ petition.

#3. From a perusal of the impugned order, it reveals that the claim of the petitioner has been rejected on the ground that the petitioner was appointed as a Revenue Tax Inspector purely on a temporary basis and that the Rules of 1966 do not provide any provision for promotion of a non-centralised employee in the centralised service.

#4. Having heard the learned counsel for the parties, the court finds that the approach adopted by the State Government is patently misconceived and the claim has been rejected merely on the ground that the State wants to behave like a petty litigant. The court is aghast by the attitude adopted by the respondents. Admittedly, the petitioner was allowed to work as a Revenue Tax Inspector and, consequently, for the 3 work performed, he was entitled to be paid the wages / salary on that post. Further, the court finds that the post was created by the State Government on 20th August, 2002 and there was no embargo upon the State in not appointing the petitioner on that post either by way of direct recruitment or by way of promotion.

#5. Rule 6 of the Rules of 1966 provides the source of recruitment, absorption and determination of service of existing officers and servants. Sub-clause (1)(iii) of Rule 6 of the Rules of 1966 is relevant, which is extracted below:- (cid:147)6. Source of recruitment, absorption and determination of service of existing officers and servants. (1) Subject to the provisions of sub-rule (2) (iii) the posts mentioned in Schedule III shall be filed in equally from two sources and in the manner mentioned above, so, however, that the odd post, if any, shall be filled in by promotion: Provided that if suitable candidates are not available in the number required under this sub-rule of recruitment by promotion or by director recruitment, as the case may be, the deficiency may be made good from the other of the two sources or a temporary appointment may be made by deputation from amongst the officers serving under Government. Provided further that in respect of the posts of Sahayak Abhiyantas mentioned in Schedule III, out of the posts to be filled by promotion, 5 per cent of the vacancies shall be filed from amongst such Junior Engineers who possess Bachelor(cid:146)s Degree in Engineering from any recognized institution or are Associate Members of the Institute of Engineers.(cid:148)

#6. The aforesaid provision indicates that the post of Revenue Tax Inspector in Class I Municipal council or Class II Municipal council is a centralized service post and is required to be filled up either by direct 4 recruitment or by way of promotion. Both the sources were open to the State Government to fill up the said post. The proviso to sub-clause (iii) of Rule 6 further indicates that in the event, a suitable candidate was not available from either of the two sources, a temporary appointment could be made by deputation from amongst the officers serving under the Government.

#7. Admittedly, the petitioner was working in the Municipal Board and he was allowed to work on the post of Revenue Inspector from

#1987. The post was sanctioned by the State Government in the year 2002 and, if no suitable candidate was available, the petitioner was deemed to be given a temporary appointment on deputation on the post of a Revenue Tax Inspector. Admittedly, the petitioner has been working as a Revenue Tax Inspector from 1987 and retired from this post on 31st January, 2008. Since the petitioner had worked on the post as a Revenue Tax Inspector, he is entitled to be paid the salary on that post. Consequently, the impugned order cannot be sustained and is quashed. The writ petition is allowed. A writ of mandamus is issued commanding the Municipal Board, Nainital to pay the salary of the petitioner on the post of a Revenue Tax Inspector from 1987 to 2002 and the State Government is directed to pay the salary of a Revenue Tax Inspector from 2002 till the date of his retirement i.e. 31st January,

#2008. The arrears would be paid by both the authorities within six weeks from the date of production of a certified copy of this order. It is made clear that if the amount is not paid within the stipulated period, interest on it would be payable on compound basis @ 8 percent per annum. Dated 18.06.2010 LSR (Tarun Agarwala, J.)