Himachal Pradesh High Court
Rajeev Sharma vs Himachal Pradesh State Pollution ... on 28 September, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 2074 of 2020 along with CWP Nos. 393 of 2021 & 672 of 2021 .
Reserved on: 20th September, 2023.
Date of Decision : 28th September, 2023.
1. CWP No. 2074 of 2020.
Rajeev Sharma ...Petitioner.
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Versus
Himachal Pradesh State Pollution Control Board rt ....Respondent.
2. CWP No. 393 of 2021.
Govind Sharma .....Petitioner.
Versus
Himachal Pradesh Pollution Control Board ....Respondent.
3. CWP No. 672 of 2021.
Vicky Thakur .....Petitioner.
Versus
Himachal Pradesh Pollution Control Board ....Respondent.
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner(s): Mr. Sanjeev Bhushan Sr. Advocate, with Mr. Sohail Khan and Mr. Narender Sharma, Advocates.1
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 28/09/2023 20:35:46 :::CIS
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For Respondent(s): Mr. Maan Singh, Advocate.
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Satyen Vaidya, Judge.
All these petitions have been heard and are being decided together as common questions of facts and law are of involved.
2. Petitioner in CWP No. 2074 of 2020 is working as rt Junior Environmental Engineer with Himachal Pradesh State Pollution Control Board (for short " the Board"). Petitioners in CWP No. 393 of 2021 and CWP No. 672 of 2021 are working as Helpers in the Board. Petitioners have been working in their respective capacities for the last about 8 to 10 years.
3. The grievance of the petitioners is that the Board has regularized the services of many similarly situated persons but in the case of petitioners such right has been denied. The petitioners have, thus, prayed for direction against the Board to absorb the services of petitioners initially on contract basis and to regularize the same in parity with the benefit granted to the similarly situated persons.
4. The brief factual background is that the Board has approved Environment Monitoring Plan(s) (for short "EMPs") ::: Downloaded on - 28/09/2023 20:35:46 :::CIS ...3...
for certain categories of Hydro Electric Projects (HEPs) in the .
State of Himachal Pradesh. In order to monitor the smooth functioning of the projects, contractual provisions for different categories of the man power have been made and included in the EMPs.
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5. The man power, under above provisions is categorized in two classes. The first one is called "bill base".
rt Such class constitutes all the employees who have been engaged by the board. Second class is known as "in kind", who are employed by the project proponents. In the case of "bill base" employees, the project proponents transfer the funds to the Board and their salary is disbursed by the Board, whereas in the case of "in kind" employees, they are paid directly by the project proponents.
6. Petitioners, in the instant petitions, have also been categorized as "in kind" employees.
7. The Board had recommended the taking over of services of "bill base" and "in kind" employees on contract basis against the sanctioned posts in the board. The matter was referred to service committee, which approved the case of "bill base" employees and rejected that of the "in kind"
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employees. In this background, the petitioners have alleged .
discrimination and have approached this Court.
8. The Board, in its reply, has submitted that the case of petitioners was distinguishable from the case of "bill base"
employees as the "bill base" employees were being paid by of the Board, whereas, the "in kind" employees were being paid by the project proponents. It has also been submitted that rt the "bill base" employees were recruited by the Board and "in kind" employees were recruited by the project proponents.
The board has further submitted that it had recommended the cases of all the employees including the "in kind" and "bill base" to the service committee for their absorption in the Board, but the service committee had approved the recommendations in case of "bill base" employees only.
9. I have heard learned counsel for the parties and have also gone through the entire record carefully.
10. The EMPs are the bye products of the contractual relations between the project proponents and the Board.
Since, the Board requires man power for monitoring all the environmental plans in respect of each and every project, the above arrangement appears to have been made.
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11. The averments of the petitioners that their .
services have been utilized regularly since their induction for regular and routine functions of the Board, has not been specifically denied by the Board, rather it has been admitted to the extent that since the construction activities in the of projects had stopped, it was within the domain of the Board to utilize the services of the employees employed for the rt purpose of EMPs. In this background the Board has not been able to justify any distinction between "bill base" and "in kind" employees in so far as assignment of work to them is concerned.
12. The categorization between the "bill base" and "in kind" employees is, however, sought to be made on the premise that the "bill based" employees are paid by the Board after receipt of the funds in that respect from the concerned project proponents and in case of "in kind"
employees it is the project proponent who directly pays the employees. Hence, fact of the matter remains that only the mode of payment is different otherwise the source of funding remains the same i.e. coffers of the project proponents.::: Downloaded on - 28/09/2023 20:35:46 :::CIS
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13. There also is no dispute on the fact that be it "bill .
based" or "in kind" employees, the purpose of their employment was to further the objective of EMPs, nonetheless their services have been utilized by the board for performance of its regular business. This fact has even been of clarified by the Board by way of its supplementary affidavit dated 18th September, 2023, filed on record of CWP No. 2074 rt of 2020. The relevant extract of the affidavit reads as under:-
"2. That in compliance to afore-cited orders it is submitted that the petitioner was engaged as Junior Environmental Engineer by the project respondent i.e. M/s Tangnu Romai Hydro Electric Project on "in kind" basis and further deployed in the State Board in the year 2012 as per provisions of Environment Monitoring Plan (EMP) of the concerned project. The services of the petitioner are co-terminus with the concerned Hydro Electric Project. As such the petitioner was deployed by the project proponent on "in kind" basis and cannot be said to be appointed by the respondent Board and more so wages were being paid by the project proponent to the petitioner directly which is evident from the correspondence dated 1-9.2014 (Annexure R-1/A) made by the project proponent regarding payment of salaries of project employees.
3. That due to shortage of staff and in exigencies of work, the petitioner's services were deployed in the Regional Office Kullu w.e.f. 21-6- ::: Downloaded on - 28/09/2023 20:35:46 :::CIS ...7...
2014 and performing the day to day work as were .
assigned to him by the Regional Officer, Kullu.
Copies of office order dated 21-6-2014 and 26-7- 2014 are annexed as Annexure R-1/B Colly. Currently the project proponent is not carrying out construction activities therefore, services of manpower provided by the project proponent on in kind basis could not be undertaken in the Board.
of Copies of Board correspondence with Regional Office, Kullu dated 28-6-2023 and 7-7-2023 are annexed as Annexure R-1/C Colly.
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4. That as already mentioned in the main reply to the CWP and keeping in view above position, it is pertinent to submit here that the State Board had taken up the matter with the Service Committee of the Board regarding framing of policy for employees engaged under various EMPs of Hydro Electric Projects and Central Aided projects in its 25th meeting held on 17-10-2018. However the Committee approved the absorption of only bill base employees on contract basis who have rendered minimum 8 years of service. Copy of agenda item and proceedings of the Service Committee is annexed as Annexure R-1/D."
14. The proceedings of Service Committee have also been placed on record. Noticeably, the said committee had approved the absorption in the case of "bill based" employees without assigning any reason for not conferring the same benefit on "in kind" employees.
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15. Classification between the "bill base" and "in kind"
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employees as suggested by the board is clearly superfluous.
In fact, the entire class of employees of the Board employed under EMPs forms a homogeneous class and the creation of class within the class that too without any intelligible of differentia is unsustainable in law. The fact that the "bill based" employees are paid by the Board is a misnomer.
rt Board gets the money for such purpose from project proponents and in the case of "in kind" employees it is project proponent, who directly pays them. Both, "bill based" and "in kind" employees are discharging the same and similar functions. They all have been subjected to disciplinary control of the Board.
16. Learned counsel for the petitioners have placed reliance on the following extract from the judgment passed by the Hon'ble Supreme Court in Nihal Singh & Ors vs. State of Punjab & Ors, (2013)14 SCC 65:-
"17. From the mere fact that the payment of wages came from the bank at whose disposal the services of each of the appellants was kept did not render the appellants employees of those banks. The appointment is made by the State. The disciplinary control vests with the State. The two ::: Downloaded on - 28/09/2023 20:35:46 :::CIS ...9...
factors which conclusively establish that the .
relationship of master and servant exists between the State and the appellants. A fact which is clearly recognized by the division bench of the High Court in LPA No.209 of 1992. It may be worthwhile mentioning here that under the law of contracts in this country the consideration for a contract need not always necessarily flow from the parties to a of contract. The decision of the SSP to reject the claim of the appellants only on the basis that the payment of wages to the appellants herein was being made rt by the concerned banks rendering them disentitled to seek regularization of their services from the State is clearly untenable.
18. Coming to the judgment of the division bench of the High Court of Punjab & Haryana in LPA No.209 of 1992 where the claims for regularization of the similarly situated persons were rejected on the ground that no regular cadre or sanctioned posts are available for regularization of their services, the High Court may be factually right in recording that there is no regularly constituted cadre and sanctioned posts against which recruitments of persons like the appellants herein were made. However, that does not conclusively decide the issue on hand. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State. That the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only demonstrates the arbitrary nature of the exercise of the power available under section 17 of the Act. The ::: Downloaded on - 28/09/2023 20:35:46 :::CIS ...10...
appointments made have never been terminated .
thereby enabling various banks to utilize the services of employees of the State for a long period on nominal wages and without making available any other service benefits which are available to the other employees of the State, who are discharging functions similar to the functions that are being discharged by the appellants."
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17. In the fact situation of instant case, the petitioners have been working as 'Assistant Environmental Engineer' and rt 'Helpers' respectively for the last 8 to 10 years. Their services have been utilized for the discharge of routine functions of the Board. Apparently, they are under the disciplinary control of the Board. Their wages are being debited to the account against EMPs. In such circumstances, the mode of payment of salary cannot be a decisive factor more particularly when the base source is one i.e. project proponents.
18. In view of above discussion, the petitions deserves to be allowed. The creation of different classes between the "bill based" and "in kind" employees by the Board is held to be arbitrary, unreasonable, irrational hence discriminatory.
19. In result, the instant petitions are allowed and the Board is directed to absorb the services of petitioners in the ::: Downloaded on - 28/09/2023 20:35:46 :::CIS ...11...
Board initially on contract basis and thereafter by way of .
regularization exactly in the same manner as has been done in the case of "bill based" employees. The entire process shall be completed by the board within six weeks from today.
The petitioners shall also be entitled to all consequential of benefits.
20. The petitions are accordingly disposed of so also rt the pending application(s), if any.
(Satyen Vaidya) Judge 28th September, 2023.
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