Himachal Pradesh High Court
Rakesh Thakur vs Govt. Of Himachal Pradesh & Ors on 22 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
`IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.116 of 2019 Date of Decision: 22.11.2022 __________________________________________________________ .
Rakesh Thakur .......Petitioner
Versus
Govt. of Himachal Pradesh & Ors. ... Respondents
__________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.
For the Petitioner: Mr. P.D.Nanda, Advocate.
For the Respondents: Mr. Sudhir Bhatnagar and Mr. Narender Guleria, Additional Advocate Generals with Mr. Sunny Dhatwalia, Assistant Advocate General.
___________________________________________________________ Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with the order dated 28.4.2018 (Annexure A-23) passed by Director-cum-Special Secretary(RD) to the Government of Himachal Pradesh, whereby despite there being directions issued by Hon'ble Apex Court on 20.4.2015 to consider the case of the petitioner for regularization from the date of his having completed eight years of service, respondents rejected the claim of the petitioner on the ground that petitioner Rakesh Kumar was engaged on Co-terminus basis in Watershed Project against the post, which is not sanctioned by the State Government and the Member of Watershed Development, petitioner approached erstwhile H.P. Administrative Tribunal by way of Original Application No.4611 of 2015, which on account of its abolishment stands 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 25/11/2022 20:31:27 :::CIS 2
transferred to this Court and has been registered as CWPOA No.116 of 2019, praying therein for following reliefs:-
"i). The impugned order dated 28.4.2015, Annexure A-23 .
may kindly be quashed and set-aside.
ii). The respondents may be directed to regularize the services of the applicant as Junior Engineer from the date he completed 8 years continuous service on contract with consequential benefits.
iii). In the alternative, the respondents may be directed to merge the services of the applicant as Junior Engineer with HP PWD as has been done while regularizing the services of the contractual JEs of the Municipal Corporation, Shimla.
2. Precisely, the facts of the case, as emerge from the record are that Additional Deputy Commissioner-cum- Project Director, District Rural Development Agency Shimla, sent a communication to the Incharge, Employment Exchange, Rampur/Chopal District Shimla on 23.01.2001 requesting therein, to sponsor the names of the candidates for six posts of Watershed Development Team Members for Development Block Chopal and Rampur on contract basis. Aforesaid communication dated 23.1.20221 also contained essential qualification as well as date of interview. As per aforesaid communication, interviews were to be held on 15.2.2001. In compliance to aforesaid communication, the Project Officer, District Rural Development Agency, Shimla sent a letter dated 16.2.2001 to the Employment Officer, Employment Exchange, Chopal, District Shimla, requesting therein to sponsor the names of the candidates for the interview to be held on 24.2.2001.The Employment Officer, Employment Exchange, ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 3 Chopal sponsored the name of the petitioner, pursuant to which he appeared in the interview for the post of Junior Engineer(Watershed Development). Since petitioner was found suitable, Deputy Commissioner-
.
cum-C.E.O. District Rural Development Agency, Shimla issued appointment letter dated 8.3.2001, pursuant to which, petitioner joined his duties on 13.3.2001 on the consolidated monthly emoluments at the rate of Rs. 2500/-
Though, appointment of the petitioner was initially for one year on contract basis, but subsequently it came to be renewed on year to year basis and as such, after eight years, he claimed regularization on the strength of policy of regularization framed by the Government of Himachal Pradesh. As per policy of Government of Himachal Pradesh, persons having completed eight years service on daily wage on contract were required to be regularized but since in the case at hand, case of the petitioner was not considered, he was compelled to approach this Court by way CWP No.6451 of 2011, which ultimately came to be decided on 26.2.2014 (Annexure A-20), whereby Co-ordinate Bench of this Court directed the respondents to regularize the services of the petitioner as Junior Engineer in District Rural Development Agency, Shimla from the date he completed eight years of service with all consequential benefits, within a period of three months. However, respondents being aggrieved with the aforesaid judgment passed by learned Single Judge of this Court, preferred LPA No.178 of 2014, titled as Government of Himachal Pradesh & others Vs. Rakesh Thakur before the Division Bench of this Court, which also came to be dismissed vide judgment dated 11.11.2014 (Annexure A-21). Instead of implementing the ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 4 judgment passed by learned Single Judge, which was further upheld by Division Bench of this Court in LPA, respondents preferred Special Leave to Appeal©. No.6937-6938 of 2015, which came to be decided on 20.04.2015 .
(Annexure A-22). However, Hon'ble Apex Court having taken note of the statement made by learned Senior Counsel for the petitioner therein i.e. State of H.P., that direction contained in the judgment passed by learned Single Judge, shall be implemented no sooner a permanent sanctioned post is available, disposed of the SLP, reserving liberty to the Department to consider the representation of the respondent afresh without being influenced by any observations made by the learned Single Judge. In the aforesaid backdrop, petitioner filed representation, which came to be dismissed vide impugned order dated 28.4.2015 (Annexure A-23). Being aggrieved with the aforesaid order, petitioner approached this Court in the instant proceedings, praying therein to quash and set-aside aforesaid order.
3. Having heard learned counsel representing the parties and perused the material available on record, especially reply filed by the respondents, there appears to be no dispute as far as facts of the case, as have been noticed hereinabove, rather same stand duly admitted. It is not in dispute that at the first instance learned Single Judge of this Court while allowing the writ petition filed by the petitioner herein, directed the respondents to grant him regularization against the post of Junior Engineer from the date he had completed eight years of service on contract basis and thereafter aforesaid order was concurred by Division Bench while deciding the LPA preferred on behalf of the respondent-State. However, Hon'ble ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 5 Apex Court instead of deciding the SLP filed by the respondent-State on merit after having recorded statement of learned counsel representing the respondent-State that as soon as post become available, case of the .
petitioner is considered, disposed of the petition, reserving liberty to the Department to consider the representation filed by the petitioner afresh without being influenced by any observations made by the learned Single Judge while passing order dated 26.02.2014.
4. Having perused the order dated 28.4.2015(Annexure A-23) passed by Director-cum-Special Secretary (RD) to the Government of Himachal Pradesh after passing of order dated 20.4.2015 passed by Hon'ble Apex Court, this Court finds substantial force in the submission of learned counsel for the petitioner that officer concerned without bothering to look into the records decided the representation in hot haste manner. No plausible reasoning ever came to be rendered on record for rejecting the rightful claim of the petitioner. Director-cum-Special Secretary (RD) to the Government of Himachal Pradesh while rejecting the representation filed by the petitioner, observed in the order that the petitioner was engaged on co-
Terminus basis in the Watershed Projects against the post, which is not sanctioned by the State Government and the Members of Watershed Development Team. However, aforesaid plea taken by the officer concerned while rejecting the claim of the petitioner is totally untenable in view of appointment letter dated 8th March, 2001(Annexure A-2).
5. In the appointment letter dated 8th March, 2001, there is no mention that petitioner was engaged on Co-terminus basis in the ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 6 Watershed Project, rather aforesaid letter suggests that initially period of contract was one year, but it came to be renewed on year to year basis, as a result of which, petitioner completed eight years service on contact basis, .
whereafter he on promulgation of policy framed by the Government of Himachal Pradesh for regularization, claimed his regularization against the post of Junior Engineer in the District Rural Development Agency. Apart from above, Officer concerned while passing impugned order dated 28.4.2015 observed that petitioner was not appointed against the post sanctioned by the State Government and the Members of the Watershed Development Team were engaged purely on honorarium basis for the project period only, but reply filed by the respondents, if perused in its entirety, clearly reveals that similarly situate persons, who are/were also appointed on contract basis under various projects were regularized on their having completed eight years regular service.
6. At this juncture, it would be apt to take note of para-4 of the reply filed by the respondents herein:-
" 4-(xiii). That in reply to the contents of this sub-para, it is submitted that the official(s) namely, Sh. Leela Dutt, Accounts Clerk, Sh. Surinder Kumar and Smt. Sanjeev Kumari as Steno Typist were initially engaged under Integrated Water Development Project (IWDP) in District Rural Development Agency (DRDA) Solan, on consolidated honorarium of Rs. 1500/- per month through Employment Exchange by conducting interviews on 27.06.1995 and subsequently, were issued appointment order vide dated 4.07.1995 by DRDA, Solan. The fourth employee Smt. Rakesh Kumari was appointed as Motivator in Draught Prone ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 7 Area Programme(DPAP) Project on a fixed honorarium of Rs.1500/- per month on the recommendation of the competent authority and the approval in this regard had been accorded by Deputy Commissioner-cum-Chief .
Executive Officer, DRDA Solan, on 01.02.1997 and consequently, the appointment order in favour of Smt. Rakesh Kumari was issued on 3.2.1997. These appointments were made by the DRDA Solan and not by the respondents and the said officials were appointed in the DRDA Solan against the created/sanctioned posts of the cadre strength of the DRDA. They have been regularized under the policy of the State Government which provides for regularization. As such, the applicant cannot draw parity with these officials as the applicant was engaged in the IWDP/IWMP and above persons were given fresh appointment in the DRDA.
It is pertinent to mention here that Smt. Suman Lata was sponsored through Employment Exchange in the office of Project Director, Desert Development Programme (DDP), Pooh, for the post of Clerk and after due interview before the Board, comprising of Block Development Officer, Pooh, Tehsil Pooh and Assistant Controller(F&A) DDP Pooh, was selected for the said post of Clerk.
Accordingly, Suman Lata joined on 29.10.1999. The appointment on contract basis was taken from DRDA Governing body which approved the same in its meeting held on 11.08.1999.
Subsequently, Suman Lata was appointed as Clerk against sanctioned post of Clerk under Desert Development Programme Old staff pattern which was later merged to DRDA Cell vide notification dated 8.08.2022.::: Downloaded on - 25/11/2022 20:31:27 :::CIS 8
However, the other posts/categories i.e. WDT (Members) and other staff were appointed, on contract basis purely on temporary basis and for the project period under different watershed Development .
Projects.
Accordingly, as per the Government policy dated 9.10.2008 those daily rated/employees appointed on contractual basis, who have completed 8 years service as on 31.03.2008, Suman Lata was regularized, after adopting the policy dated 16.06.2009 by the Screening Committee.
4(xiv) That in reply to the contents of this sub-para, it is submitted that a policy decision was taken vide notification dated 24.09.2012(Annexure A-15), whereby, it was decided that only DRDA borne staff r would be taken over by the Rural Development Department whereas, the applicant Sh. Rakesh Thakur was not DRDA borne staff as he was not engaged by the DRDA against the sanctioned post of the DRDA, but he was engaged on need based basis against the post which was not approved/sanctioned by the State Government on Co-terminus basis for the project period."
7. Apart from above, this Court finds that Deputy Secretary(RD) to the Government of Himachal Pradesh had filed supplementary affidavit in terms of order dated 14.03.2013 passed learned Single Judge in CWP No.6451 of 2011, admitting therein that persons, who were appointed under various schemes in the office of DRDA, Solan were regularized on their having completed 8 years. It would be apt to take note of aforesaid supplementary affidavit (Annexure A-18)hereinbelow:-
" I, Jitender Sanjta S/o Sh. Harpal Sanjta, aged 29 years, occupation Government Servant presently posted as ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 9 Deputy Secretary (RD) to the Government of Himachal Pradesh and being competent and authorized to file supplementary affidavit on behalf of the State of Himachal Pradesh, do hereby solemnly affirm and state .
as under:-
1. That the said case was listed before the Hon'ble High Court of H.P., on 14.03.2013, when the Hon'ble High Court has directed the respondents-State to file supplementary affidavit clarifying therein whether the person regularized vide Annexure P-21 were working in District Rural Development Agency or in the Integrated Water Development Project(IWDP), by the next date of hearing. The said case is now ordered to be listed next week.
2. It is humbly submitted that the officials mentioned in Annexure P-21 were given regular appointment by Distt. Rural Development Agency Solan, therefore the relevant record was summoned from the said quarter. The perusal of the record reveals that the three officials namely Sh. Surinder Kumar and Smt. Sanjeev Kumari as Steno Typist were initially engaged under Integrated Water Development, Project (IWDP) in District Rural Development Agency (DRDA) Solan, on consolidated honorarium of Rs.1500/- per month through Employment Exchange vide conducting interview vide dated 27.06.1995 and subsequently, were issued appointment order vide dated 04.07.1995 by District Rural Development Agency, Solan. The third employee Smt. Rakesh Kumari was appointed as Motivator in DPAP Project on the basis of fixed honorarium of Rs. 1500/- per month on the recommendation of the competent authority and the approval in this regard had been accorded by Deputy Commissioner-cum-Chief Executive Officer, DRDA Solan, on 01.02.1997 and ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 10 consequently, the appointment order in favour of Smt. Rakesh Kumari was issued vide dated 03.02.1997. Subsequently, vide Annexure P-21, they have been regularized as Clerk in District Rural .
Development Agency (DRDA) Solan, H.P.
8. Having scanned entire material available on record, especially stand taken by the respondents in their reply as well as in supplementary affidavit, which have been reproduced hereinabove, this Court has no hesitation to conclude that impugned order dated 24.04.2015, passed by Director-cum- Special Secretary (RD) to the Government of Himachal Pradesh, is without there being application of mind and same appears to have been passed to punish the petitioner, who otherwise had been contesting for his rightful claim since year 2011. Despite his having succeeded upto Hon'ble Apex Court, respondents left no stone unturned to defeat his rightful claim. Once respondents had undertaken before Hon'ble Apex Court that as and when sanctioned post becomes available, case of the petitioner shall be considered, there was otherwise no occasion for the respondents to reject the claim of the petitioner that too on the flimsy grounds, as have been taken note hereinabove.
9. Though, at this stage, Mr. Sudhir Bhatnagar, learned Additional Advocate General, attempted to state that no sanctioned post ever became available, enabling the Department to consider the case of the petitioner, but such plea of him is totally contrary to the record.
Respondents in their reply to the petition have categorically stated that the petitioner was engaged on contractual basis and an agreement to the said ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 11 effect was entered into by the petitioner with the Deputy Commissioner as Chief Executive Officer District Rural Development Agency, Shimla for project period against the temporary vacancy in the project of Government .
of India on consolidated monthly remuneration of Rs. 2500/- on lump sum basis, meaning thereby vacancy was very much available when services of the petitioner were taken on contract basis. Apart from above, petitioner has also placed on record vacancy position procured under Right to Information Act. Communication dated 22.05.2015 (Annexure A-26), perusal wherof reveals that in the year 2015, 39 posts of Junior Engineer were lying vacant in the Department of Rural Development. Leaving everything aside, it has also come on record that similar situate persons, who were initially appointed on contract basis were regularized on their having completed eight years regular service in different categories, if it is so, there is no reason for not regularizing the services of the petitioner from the date, he had completed eight years service on contract basis. Since appointment letter issued in favour of the petitioner itself suggests that same was issued by Deputy Commissioner Shimla, it does not lie in the mouth of the respondent-State to claim that respondents- State is not the appointing authority, rather reply filed on behalf of the respondents, which has been taken note hereinabove, clearly reveals that for all intent and purposes, petitioner was appointed against the post of Junior Engineer on contract basis by Government Agency i.e. Deputy Commissioner, Shimla, may be under some project. Since all the other persons working on the project have been regularized in their respective categories on their having completed ::: Downloaded on - 25/11/2022 20:31:27 :::CIS 12 eight years daily wage service, case of the petitioner is also required to be considered on the similar lines.
10. Consequently, in view of the detailed discussion made .
hereinabove, this Court finds merit in the present petition and accordingly, same is allowed and respondents are directed to regularize the services of the petitioner from the date, he had completed eight years service on daily wage against the post of Junior Engineer with all consequential benefits.
Pending applications, if any, also stands disposed of.
(Sandeep Sharma), Judge 22nd November, 2022 (shankar) ::: Downloaded on - 25/11/2022 20:31:27 :::CIS