Himachal Pradesh High Court
Nek Ram Son Of Shri Sunder Singh vs State Of H.P on 26 November, 2021
Author: Satyen Vaidya
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 26th DAY OF NOVEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION No. 56 OF 2020
Between:-
NEK RAM SON OF SHRI SUNDER SINGH,
RESIDENT OF VILLAGE & POST
OFFICE DAIN, TEHSIL BARSAR,
DISTRICT HAMIRPUR, H.P. PRESENTLY WORKING
AS BELDAR IN HPPWD SUB-DIVISION SAMIRPUR,
DIVISION BHORANJ, CIRCLE HAMIRPUR,
DISTRICT HAMIRPUR, H.P.
...PETITIONER
(BY SH. R.L. CHAUDHARY & SH. H.R. SIDHU,
ADVOCATES)
AND
1. STATE OF H.P. THROUGH PRINCIPAL
SECRETARY (PW) TO THE GOVERNMENT
OF HIMACHAL PRADESH, SHIMLA-171002.
2. ENGINEER-IN-CHIEF, HPPWD, NIRMAN
BHAWAN, NIGAM VIHAR, SHIMLA-171002
3. SUPERINTENDING ENGINEER, HPPWD
CIRCLE HAMIRPUR, DISTRICT
HAMIRPUR, H.P.
4. EXECUTIVE ENGINEER, HPPWD DIVISION
BHORANJ, DISTRICT HAMIRPUR, H.P.
5. SHRI MANOHAR LAL SON OF SHRI
KRISHAN DASS, PRESENTLY WORKING AS
BELDAR IN HPPWD SUB-DIVISION
SAMIRPUR, DIVISION TAUNI DEVI,
CIRCLE HAMIRPUR, DISTRICT HAMIRPUR, H.P.
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2
6. SHRI PANNA RAM SON OF SHRI
MAHANT RAM, PRSENTLY WORKING AS
BELDAR IN HPPWD SUB-DIVISION SAMIRPUR,
DIVISION TAUNI DEVI, CIRCLE HAMIRPUR,
DISTRICT HAMIRPUR, H.P.
.
.... RESPONDENTS.
(SH. RAJINDER DOGRA, SENIOR ADDITIONAL
ADVOCATE GENERAL, FOR R-1 TO 4.
RESPONDENTS NO. 5 & 6, PROCEEDED EXPARTE)
RESERVED ON: 12.11.2021.
DECIDED ON: 26.11.2021.
______________________________________________________________
This petition coming on for admission after
notice this day, the Court passed the following:
ORDER
By way of instant petition, petitioner has prayed for the following substantive reliefs:
(i) That writ of certiorari may kindly be issued, quashing and setting aside the impugned order dated 17.10.2019 (Annexure-PD), since the same has been passed in violation of the ratio laid down by this Hon'ble Court in judgment date 24.09.2014 passed by the Hon'ble Court in CWP No. 7140/2012 Gian Singh Versus State of H.P. & Others (Annexure-PC) and judgment dated 23.04.2015 passed in CWP No. 1044/2015, titled ::: Downloaded on - 31/01/2022 23:20:27 :::CIS 3 as Jai Singh Vs. State of H.P. & Others (Annexure-
PE)
(ii) That writ of mandamus may kingly be issued, directing the respondents to regularize the service .
of the petitioner w.e.f. 2000 with all consequential benefits, since he was engaged on daily wage basis in the year 1993 and he has completed his 8 years service with 240 days in the year 2000 and the respondent department has deprived the petitioner to get the said regularization without any justification, whereas the private respondents who were juniors to the petitioner in all respect, since they were engaged in the year 1994, their services were regularized w.e.f. 01.01.2002 and the petitioner was regularized w.e.f. 01.01.2003, although the petitioner was also entitled to get regularization as per existing policy for the year 2000 i.e. Annexure A-1 of Annexure-PA.
(iii) That writ of mandamus may kindly be issued, directing the respondents to place the petitioner in the seniority list prior to the private respondents in view of the factum that the petitioner is senior to the private respondents, in all respect, since the petitioner was engaged in the respondent department in the year 1993, whereas the private respondents were engaged in the respondent department in the subsequent year i.e. 1994."
::: Downloaded on - 31/01/2022 23:20:27 :::CIS 42. The case of the petitioner is that he was employed as daily wage Beldar in the year 1993 by respondent No.4. He continuously worked for 240 days in each calendar year and .
thus became entitled to regularization on completion of 8 years of daily waged services as per regularization policy dated 3.4.2000 of the Government of Himachal Pradesh, Department of Personnel circulated vide No. PER(AP)-C-B(2)-
2/97-Vol.IV (Loose). His further grievance is that instead of regularizing him from due date i.e. 01.01.2001, the official respondents regularized him w.e.f. 01.01.2003. According to petitioner, the private respondents were engaged on daily wages in 1994 i.e. one year after the engagement of petitioner, but they were regularized w.e.f. 01.01.2002 and have been wrongly, illegally made senior to petitioner.
3. Petitioner on 26.02.2019 raised all these grievances by way of legal notice addressed to respondent No.4. In response, the petitioner received reply dated 15.3.2019 in which the claim of the petitioner was denied on the grounds that the petitioner was regularized on completion of 10 years continuous service in compliance to decision taken by the Secretary Finance dated 20.02.2008 and the Principal ::: Downloaded on - 31/01/2022 23:20:27 :::CIS 5 Secretary (PW) dated 18.02.2008. It was also communicated that the private respondents were given the benefit of regularization on completion of 8 years on the basis of the .
judgment passed by this Court in CWP No. 2735 of 2010, titled Rakesh Kumar vs. State of H.P. and some orders issued by the Hon'ble Apex Court on 15.01.2015.
4. Discontented with the response of official respondents, petitioner approached the Himachal Pradesh Administrative Tribunal (for short 'Tribunal') by way of O.A. No. 1834 of 2019 and sought parity as per judgment passed by learned Single Judge of this Court in CWP No. 7140 of 2012 titled Gian Singh vs. State of H.P. and others, decided on 24.09.2014. Learned Tribunal disposed of the said O.A. on 06.05.2019 in the following terms:
"4. The applicant claims the benefit of the judgment passed by the Hon'ble High Court of Himachal Pradesh in CWP No. 7140 of 2012, Gian Singh versus State of H.P. and others, decided on 24.9.2014 (copy is taken on record). Learned Additional Advocate General submits that the factual aspects are to be verified and if the applicant is found similarly situate, benefit of the judgment referred to above, shall be extended to him.::: Downloaded on - 31/01/2022 23:20:27 :::CIS 6
5. In view of the above, the present original application is disposed of with a direction to 2nd respondent to extend the benefit of the judgment referred to above, to the applicant herein, in case he is similarly situate, within two .
months from today. The applicant shall produce certified copy of this order as well as copy of the judgment referred to above before 2nd respondent within a week."
5. In compliance to the aforesaid order passed by the learned Tribunal, respondent No.2 considered the claim of petitioner and rejected the same vide order dated 17.10.2019.
6. Aggrieved against the order dated 17.10.2019 issued by respondent No.2, petitioner has approached this Court by way of instant petition.
7. I have heard learned counsel for parties and have also gone through the records.
8. Petitioner contends that the impugned order dated 17.10.2019 passed by respondent No.2 is wrong and illegal inasmuch as equals have been treated unequally which is against the basic cannons of law. As per petitioner, he was covered under the regularization policy dated 3.4.2000.
According to petitioner, the impugned order is without any legal basis. The judgment rendered by the learned Single ::: Downloaded on - 31/01/2022 23:20:27 :::CIS 7 Judge of this Court in Gian Singh's case has not been considered in right perspective, even factually wrong assertions have been made. The right given to Gian Singh .
could not be construed to be personal only to him as no such qualification was prescribed in the judgment passed by learned Single Judge.
9. In reply, the official respondents have controverted the claim of petitioner by reiteration of its previous stand taken in the reply to the notice as well as in the impugned order dated 17.10.2019 passed by respondent No.2.
10. In view of order dated 6.5.2019 passed by learned Tribunal in OA No. 1834 of 2019, the only controversy remained as to whether the case of petitioner was covered by the case of Gian Singh vs. State of H.P., CWP No. 7140 of 2012, decided by the learned Single Judge of this Court on 24.09.2014.
11. The facts of the case, by and large, are admitted.
Petitioner was engaged as daily wage Beldar in 1993. He had completed 8 years continuous service in 2000. It is also admitted by official respondents that petitioner initially was ::: Downloaded on - 31/01/2022 23:20:27 :::CIS 8 offered regularization upon completion of 8 years' service with prospective effect under the Government regularization policy dated 30.04.2000. It is also not disputed that private .
respondents were engaged as daily waged workmen in 1994 and were regularized after 8 years continuous service w.e.f.
01.01.2002.
12. Respondent No.2 rejected the case of petitioner on following grounds:
a) the facts in the case of petitioner were different to the facts in Gian Singh's case;
b) Gian Singh was in engagement since 1992 and worked for 10 years till 31.12.2001 with 240 days in each calendar year and he along with other 60 workmen of Karsog Division were granted work charge status retrospectively w.e.f. 01.01.2000;
c) After dismissal of SLP in Gian Singh's case, COPC was filed by petitioner Gian Singh and the relief of work charge status w.e.f.
01.01.2000 was granted to him as a personal measure and hence cannot be treated as a precedent.
d) Review petition has been filed in the case of Gian Singh which was pending.
::: Downloaded on - 31/01/2022 23:20:27 :::CIS 9e) The petitioner was rightly conferred work charge status w.e.f. 01.01.2003 under the relevant Government regularization policy framed as per judgment in Mool Raj's case and .
duly upheld in Gehar Singh's and Gouri Dutt's case.
13. Perusal of impugned order reveals that the reasons assigned for denying the claim of petitioner are unconscionable and also against the records. In Gian Singh's case the petitioner therein was an appointee of 1992 and was held to be entitled to the benefit of regularization after 8 years.
The learned Single Judge in para-7 of the above noted judgment, has observed as under:
"7. There is no justification or reasonable explanation offered by the respondents as to why the services of the petitioner were regularized on 1.1.2002 after completion of alleged 10 years of continuous service when admittedly the policy issued vide letter dated 26.9.2005 and circulated on 24.10.2005 (Annexure R-1) clearly provided for regularization of services of all the daily wagers, who had completed 8 years or more daily wages continuous service as on 31.03.2000 with minimum of 240 days in each calendar year. Accordingly, the petitioner is entitled ::: Downloaded on - 31/01/2022 23:20:27 :::CIS 10 to be regularized w.e.f. 1.1.2000 i.e. the date when he had completed 8 years of continuous service."
14. In the present case also, the parties are ad- idem on .
one issue at least that regularisation policy dated 3.4.2000 was applicable to the petitioner. Reference can be made to the averments made in sub para (B) of para-3 of the preliminary submissions and also para (B) of para (1) of reply on merits of the reply filed on behalf of official respondents, which reads as under: r "(B). That the Executive Engineer, HPPWD, Tauni Devi Division vide his order No.PW/TDD/EA-II/2006-9669- 15 dated 22.11.2006 (copy of order is attached as Annexure R-1), the petitioner was offered regularization upon completion of 8 years of service with prospective effect under the Govt. regularization policy dated 30.04.2000....."
15. Noticeably, petitioner is seeking his regularization under the policy dated 03.04.2000, whereas, the official respondents have mentioned the date of policy as 30.04.2000.
A copy of the policy relied upon by petitioner is on record which mentions the date 03.04.2000. Respondents have not placed any such policy which is dated 30.04.2000. It is ::: Downloaded on - 31/01/2022 23:20:27 :::CIS 11 difficult to imagine that the Government would advance two separate policies touching same subject within a month, therefore, this Court has reasons to assume that the policy .
dated 03.04.2000 is the same which has been referred to by the official respondents in para 3 (B) of preliminary submissions as policy dated 30.04.2000. In any case, there is no conflict between the parties regarding requirement of 8 years continuous service on daily wages for regularisation, be it policy dated 03.04.2000 or 30.04.2000. It is not clear on what basis respondent No.2 has arrived at a conclusion that Gian Singh's case had no relevance to the case of petitioner.
16. Another distinction drawn by respondent No.2 with Gian Singh's case on the ground that he was given retrospective benefit is again without substance as the petitioner was also given the benefit of regularization with retrospective effect. Further it has not been revealed as to what weighed with the authorities for considering the case of Gian Singh and 60 other workmen of Karsog Division to grant them retrospective work charge status w.e.f. 01.01.2000, therefore, also denial of claim of petitioner is whimsical.
::: Downloaded on - 31/01/2022 23:20:27 :::CIS 1217. Once the judgment in Gian Singh's case was affirmed by the Hon'ble Supreme Court, its efficacy or mandate could not be undermined by any subsequent pronouncement. No .
record of COPC allegedly filed in the case of Gian Singh has been produced so as to lend credence to the fact that relief granted to Gian Singh was personal to him. Thus, the impugned order has been passed on fallacious grounds. This court, therefore, is of considered view that no justifiable reason has been assigned by respondent No.2 in his order dated 17.10.2019, which can be said to be legally tenable for distinguishing the case of Gian Singh from the case of petitioner.
18. The stand of the respondents that petitioner and private respondents were covered by different policies and also that they were treated separately on the basis of different judgments of this Court or Hon'ble Apex Court also remained unjustified in absence of any details. The State being model employer has to act with fairness.
19. In view of the above discussion, the petition is allowed and the order dated 17.10.2019 passed by respondent No.2 is quashed and set-aside. Petitioner is held entitled to the ::: Downloaded on - 31/01/2022 23:20:27 :::CIS 13 benefit of regularization w.e.f. 1.1.2001. Respondents No. 1 to 4 are directed to grant such benefit to the petitioner with all other consequential benefits within six weeks from the date of .
this judgment.
20. The petition is disposed of in the aforesaid terms with no order as to costs, so also the pending miscellaneous application(s), if any.
26th November, 2021
(GR) r to (Satyen Vaidya)
Judge
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