Himachal Pradesh High Court
State Of H.P. And Ors vs Sh. Keshav Ram on 30 August, 2017
Bench: Sanjay Karol, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
LPA No. 645 of 2011
Date of Decision: 30.8.2017
State of H.P. and Ors. .....Appellants
Versus
.
Sh. Keshav Ram ....Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the appellants: Mr. Anup Rattan & Mr. Romesh Verma,
Additional Advocate Generals and Mr. J.K.
Verma, Deputy Advocate General.
For the Respondent: Mr. Sanjeev Bhushan, Senior Advocate, with
Ms. Abhilasha Kaundal, Advocate.
_______
Sandeep Sharma, J. (oral)
By way of instant letters patent appeal, challenge has been laid to judgment dated 9.7.2010, passed by the learned Single Judge, in CWP(T) No. 5752 of 2008 (OA No. 1032 of 1999), titled as Keshav Ram v. State of HP and Ors., whereby the learned Single Judge, while allowing writ petition having been preferred by the petitioner-respondent herein (in short "petitioner"), held that the petitioner shall be deemed to be in continuous service from the date of his initial engagement for the period as mentioned in Annexure R-1 after ignoring the fictional breaks given by the respondents-
appellants herein, from the year, 1994. Apart from above, learned Single Judge, also held the petitioner entitled to all consequential benefits of continuous service of period as mentioned herein above.
1Whether reporters of the local papers may be allowed to see the judgment?
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2. Succinctly, facts necessary for adjudication of the case .
are that the petitioner was engaged as daily wage (Baildar), in the year, 1994, and thereafter, he continued to render his services with the respondents-appellants herein (herein after referred to as the respondents). Petitioner by way of original application, preferred before the learned H.P. State Administrative Tribunal, which was subsequently registered as CWP (T) No. 5752 of 2008, alleged that respondents-department gave artificial breaks to him solely with a view to prevent him from completing 240 days in each calendar year and deprived him the benefits of salary and leave of Sunday etc. Respondents while refuting aforesaid claim of the petitioner submitted before the court below that the petitioner never completed 240 days since 1994 and in every year, he remained willfully absent and reported for duty casually. To substantiate the aforesaid stand, respondents also placed on record mandays chart (Annexure R-1).
Learned Single Judge, taking note of the pleadings adduced on record by the respective parties, allowed the petition having been preferred by the petitioner and granted him relief as has been taken note above.
3. Mr. Anup Rattan, learned Additional Advocate General, duly assisted by Mr. J.K. Verma, learned Deputy Advocate General, while referring to the impugned judgment passed by the learned ::: Downloaded on - 06/09/2017 23:25:11 :::HCHP ...3...
Single Judge, strenuously argued that since learned Single Judge has .
failed to consider the reply filed by the present appellant while disposing of the petition, there is an error apparent on the face of the record and as such, impugned judgment is liable to be quashed and set-aside. While referring to Annexure R-1 annexed with the reply, learned Additional Advocate General, further contended that it stands duly proved on record that there was shortfall of mandays ranging from 10 to 15 days during calendar year from 1994 to 1998 as far as completion of 240 days in one calendar year is concerned.
Learned Additional Advocate General further contended that onus, if any, to prove factum with regard to the completion of 240 days in a calendar year was upon the petitioner, not upon the respondent-
department and as such, learned Single Judge, has fallen in grave error while condoning the shortfalls of the mandays ignoring the position explained in Annexure R-1. With the aforesaid submissions, learned Additional Advocate General, prayed that instant appeal be allowed and judgment of learned Single Judge, be quashed and set-
aside.
4. On the other hand, Mr. Sanjeev Bhushan, Senior Advocate, duly assisted by Ms. Abhilasha Kaundal, Advocate, representing the respondent herein (petitioner), while inviting attention of this Court to the impugned judgment passed by the ::: Downloaded on - 06/09/2017 23:25:11 :::HCHP ...4...
learned Single Judge, contended that there is no illegality and .
infirmity in the same and as such, same is based upon the law laid down by the Hon'ble Apex Court in Mohd. Abdul Kadir and Anr. V. Director General of Police, Assam and others, (2009) 6 SCC 611, wherein issue with regard to artificial breaks stands duly settled.
Learned senior counsel further contended that judgment rendered by the Division Bench of this Court in CWP No. 4367 of 2009, which has also been taken note by the learned Single Judge, has also attained finality and as such, there is no merit in the present appeal and same deserves to be quashed and set-aside.
5. We have heard the learned counsel for the parties and carefully gone through the record.
6. It is quite apparent from the perusal of the impugned judgment passed by the learned Single Judge that same is based upon the judgment passed by the Hon'ble Apex Court in Mohd.
Abdul case supra, wherein practice of giving artificial breaks from time to time and reappointing the same staff, has been held to be contrary to the service jurisprudence, relevant paras of the aforementioned judgment, are being reproduced herein below:-
"16. We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were introduced ::: Downloaded on - 06/09/2017 23:25:11 :::HCHP ...5...
by Government of India. The scheme does not .
contemplate or require such periodical termination and re-appointment. Only ex-servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was continued. The artificial annual breaks and reappointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service.
17. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally co-
terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re- engagement, merely because their appointment is termed as ad hoc appointments.::: Downloaded on - 06/09/2017 23:25:11 :::HCHP
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18. We are therefore of the view that the learned .
Single Judge was justified in observing that the process of termination and re-appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, co- terminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed."
7. Question with regard to the condonation of short breaks also came to be considered by the Division Bench in CWP No. 4367 of 2009, decided on 1.12.2009, wherein Division Bench of this Court drawing strength from aforesaid judgment passed by the Hon'ble Apex Court in Mohd. Abdul Kadir case supra, categorically held that in light of law laid down by the Hon'ble Supreme Court , respondents ought to have condoned the shortage of few days while calculating 240 days in a particular calendar year in the case at hand. It also emerges from perusal of Annexure R-1 placed on record by the respondents that petitioner had worked for 210 days from April, 1994 to December, 1994 and thereafter, in the years, 1995, 1996, 1997, 1998, petitioner had worked for 227, 230, 229 and 227 days respectively. It also emerge from the record that in the year, 1999 (January, 1999 to April, 1999), petitioner had worked for 76 days. There ::: Downloaded on - 06/09/2017 23:25:11 :::HCHP ...7...
is nothing on record suggestive of the fact that the petitioner at any .
point of time abandoned the job, rather learned Single Judge has rightly observed that endeavor of such person would be always to complete 240 days to earn the benefit of regularization.
8. After having taken note of man days chart (Annexure R-
1) particularly qua years, 1994 till 1999, we find force in the arguments of learned senior counsel representing the petitioner that the artificial breaks were given by the respondents solely with a view to stop him from completing 240 days in every year so that prayer, if any, for regularization, is not made by the petitioner.
9. During proceedings of the case, it is also brought to our notice that SLP(C) bearing No. 21833 of 2010 having been preferred by the respondents against the similar judgment passed by the Division Bench of this Court in CWP(T) No. 1807 of 2009, titled Satish Kumar v. State of HP and Ors. and SLP (Civil) No. 20740 of 2008 titled Sarvjeet v. State of H.P. and Ors, stand dismissed and as such, judgment passed by the Division Bench of this Court in CWP No. 4367 of 2009, wherein directions were issued to respondents to condone the shortage of few days in a particular year while calculating 240 days, has attained finality. Learned Additional Advocate General, was not able to dispute the factum as brought to our notice with ::: Downloaded on - 06/09/2017 23:25:11 :::HCHP ...8...
regard to dismissal of the aforesaid SLP preferred by the respondents-
.
State.
10. Leaving everything aside, after having carefully perused the impugned judgment, we find that judgment impugned before us is squarely based upon law laid down by the Hon'ble Apex Court, in Mohd. Abdul Kadir case supra, and as such, there is no scope of interference by this Court.
11. Consequently, in view of the detailed discussion made herein above, we see no reason to interfere with the judgment passed by the learned Single Judge, which is otherwise based upon proper appreciation of material adduced on record by the respective parties. Present appeal fails and dismissed accordingly.
( Sanjay Karol),
Acting Chief Justice
30th August, 2017 ( Sandeep Sharma ),
Manjit Judge.
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