Himachal Pradesh High Court
Om Prakash & Ors vs Himachal Urban Development Authority & ... on 9 July, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No. 4961 of 2019.
Reserved on : 05.07.2021.
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Decided on : 9th July, 2021.
Om Prakash & Ors. ..Petitioners.
Versus
Himachal Urban Development Authority & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 For the Petitioners: Mr. A.K. Gupta, Advocate. For Respondents No.1 & 2: Mr. Devender Kumar, Advocate vice Mr. C.N. Singh, Advocate.
For Respondent No.3: Mr. Ashwani Sharma, Additional Advocate General.
Sureshwar Thakur, Judge.
The writ petitioners aver that they were initially engaged as Clerks, on, a daily wage basis. On completion of the requisite tenure of service, on a daily wage basis, in the afore capacity, they were required to be regularised by the respondents in the afore capacity or against the afore post of 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 13/07/2021 20:13:06 :::HCHP
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clerks, against which they were earlier performing their duties.
However, the respondents through the impugned office order, borne in Annexure P-2, ordered for their services being regularised against Class-IV post(s). Consequently, the writ petitioners feel aggrieved, and, they seek the making of a mandamus, upon, the respondents to regularise their services against the vacant posts of Clerks.
r Moreover, they also seek a mandamus being made, for setting aside and quashing of Annexure P-2. In addition, they seek the according to them, the wages of clerks, from the date of their initial engagement in the afore capacity along with all incidental thereto benefits.
2. The respondents, in their reply meted to the writ petition, contended that the writ petition is barred by vices of delay, and, laches, inasmuch, as, the writ petitioners accepted their regularisation against the post of Beldar, event whereof occurred on 9.4.2010. Consequently, the respondents contend that the writ petition instituted in the year 2010 is barred by delay, and, laches. Furthermore, they also contend that the ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...3...
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acceptance by the writ petitioners of their regularization against the post of Beldar, tantamounts to theirs waiving, and, abandoning, their claim, if any, for theirs being regularized against the post of Clerk. Obviously, the respondents contend that the reliefs canvassed in the writ petition are mis-
constituted, as, the afore ill conduct, estops them from claiming any relief against the respondents.
3. There is no wrangle amongst the contesting litigants, vis-a-vis, the applicability qua the petitioners, of the policy for regularization. The trite acid contest which erupts amongst the contesting litigants, is, confined to the entitlement of the writ petitioners to become regularised against the post of Clerks, and/or as contrarily contended by the respondents qua theirs being only entitled to be regularised against Class-IV vacancies.
4. The petitioners, for facilitating, their averments, make dependence upon Annexure P-1, wherein, there exists clear, and, categorical reflection(s) qua the writ petitioners, since the date of their initial engagement, rather performing the ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...4...
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duties of Clerk(s). The authenticity of Annexure P-1, has not been attempted to be challenged, in the reply, furnished to the writ petition by the respondents. In sequel, the display(s) made in Annexure P-1, inasmuch, as, it making depictions, that the writ petitioners, since the date of their initial engagement, under, the respondents, performing duties of Clerk(s), on a daily wage basis, does acquire the gravest solemnity.
5. Be that as it may, the writ petitioners also placed dependence upon Annexure P-1, hence enclosing an order made by the Chief Executive Officer-cum-Secretary, HIMUDA, Shimla.
Therein a candid recital occurs, vis-a-vis, an undertaking being made in the Labour Court-cum-Industrial Tribunal concerned, and, the undertaking enclosing recitals, vis-a-vis, the petitioners, since the date of their joining service under the respondents, on a daily wage basis, theirs performing duties of Clerk(s).
Thereafter also a recital occurs in the concluding portion of Annexure P-1, that the author thereof, recommending, for, the writ petitioners, hence becoming regularised against the posts of ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...5...
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Clerks. Even, the vigour of Annexure P-1, has not been endeavoured to be stripped off, of its authenticity(ies) by the respondents, by theirs contesting authenticity thereof. In sequel, the displays made therein acquire authenticity.
Therefore, the respondents are barred/estopped from contending before this Court that the petitioners since the date of their initially joining services, on a daily wage basis, theirs performing the duties of Beldar and/or in an alike Class-IV capacity. Contrarily, all the displays made in Annexure P-2, garner utmost corroboration(s) therefrom.
6. Moreover, the sequelling incidental effect thereof, is that since the writ petitioner instituted the extant writ petition in the year 2010, hence seeking the quashing of Annexure P-2, and, wherethrough their claim for regularization against the post of Clerk, became denied, and, rather they became regularised against the post of Beldar, through, orders made in the year 2010. Therefore, since the writ petitioners in quick spontaneity or promptly, since the making of the impugned annexure, ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...6...
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canvassed the writ remedy. Consequently, it is not open for the respondents to contend that the writ petition is grossly hit by vices of delay, and, laches, nor hence, it is liable to be dismissed.
7. In addition, since qua alike to the petitioners, situated employees, a co-ordinate Bench of this Court while making a decision upon, CWP(T) No.628/2008, titled as Santosh Chauhan vs. Himachal Pradesh Housing and UDA and others, decided on 10.05.2010, proceeded to grant the espoused reliefs to the petitioner therein. Moreover, also when alike the writ petitioners, one Santosh Chauhan became granted the relief of hers being regularised against the post of Clerk/Supervisor. Therefore, and also, when the respondents are unable to contest the vigour of afore Annexure(s), rather making respectively displays of the petitioners, since the date of their initial joining, theirs rendering services, as, Clerks on a daily wages, and, of the Secretary of the respondents making recommendations for theirs being regularised against the post of Clerks, especially in the face of an undertaking, to the afore ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...7...
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effect being made before the Labour Court-cum-Industrial Tribunal, hence makes the writ petitioners to become entitled to stake a valid claim for regularization against the post of Clerks.
8. However, dehors the afore, the learned counsel appearing for the respondents, has depended upon a verdict made by the Hon'ble Principal Division Bench of this Court, upon, CWP No. 880 of 2018, titled as Himachal Pradesh General Industries Corporation Limited vs. Jagdish Kumar, decided on 25.07.2019. In the afore verdict, the Hon'ble Principal Division Bench of this Court, had, upon, the workman therein accepting without demur, his regularization against the post of Peon, had concluded that hence he was estopped from seeking his regularization against the post of Supervisor rather a Class-III, post. However, the reliance as placed by the learned counsel for the respondents, upon, the afore verdict is a gross mis-reliance. The reason for taking the afore view is founded, upon, the factum that the workman therein, was admittedly initially engaged, as, a Driller, on a daily wage basis, in the year ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...8...
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1992. However, he became designated, as, Blastman-cum-
Supervisor, rather a Class-III, Post in the year 2004. The principal reason prevailing, upon, the Hon'ble Division Bench of this Court, to discard the re-designation of the workman therein, as, Blastman-cum-Supervisor, rather a Class-III, Post, became comprised in the fact, that the re-designated post, is a promotional post, and, that the workman therein, was performing the duties of Driller, on a daily wage basis, hence a Class-IV Post. Consequently, the workman therein, upon being meted regularization against the re-designated post of Blastman-cum-Supervisor, became concluded to result in his untenably escalating two steps in the ladder, to the promotional post of Blastman-cum-Supervisor. Moreover, another reason, which prevailed, upon, the Principal Devision Bench of this Court, to deny, to the workman therein, the benefit of regularization against the redesignated post of Blastman-cum-
Supervisor, became founded, upon, the educational qualification, as, prescribed for the post of Supervisor, being ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...9...
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higher, and, that the afore educational qualifications being not satiated by the workman therein. The foundation of the reasoning meted by the Hon'ble Division Bench of this Court in the afore verdict relied, upon, by the learned counsel appearing for the respondents, for contesting the contention(s) of the writ petitioner herein, is, rested upon (a) the initial appointment of the workman therein on a daily wage basis being against a Class-
IV vacancy, and, his thereafter being designated against the Class-III Post, inasmuch, as, Blastman-cum-Supervisor, and, that the workman therein hence without possessing the requisite to the apposite post, the, educational qualification, and, besides his untenably jumping/escalating two steps in the ladder of promotion, upon, his regularisation,to the promotional post of Blastman-cum-Supervisor, rather all working against the workman therein. (b) However, the petitioners herein, since the date of their initial engagement, were engaged as Clerks on a daily wage basis. Therefore, vis-a-vis, the writ petitioners herein, there was no possibility of occurrence of any re-designation of ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...10...
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the status which became initially conferred upon them, also hence there is no scope of theirs, upon, the relief of regularization against the post of Clerks being meted to them, to rather untenably escalate two steps in the ladder of promotion, to the post of Clerk, against which post otherwise also since the duties.
r to date of their initial engagement, they were performing their
9. In summa, the verdict relied upon by the respondents, for reiteration cannot be depended upon by this Court for denying the relief of regularization in service to the petitioners.
10. Be that as it may, the petitioners' demur, and, consequential thereto incidental ill-effect(s) of estoppel working against the workmen therein, is, not attracted against the petitioners hereat. The reason being, that it becoming admittedly reflected in Annexure P-1, that since the date of their initial engagement as Clerks under the respondents, theirs performing duties of Clerks. Therefore, their untenable ::: Downloaded on - 13/07/2021 20:13:06 :::HCHP ...11...
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regularization against the post of Beldar, against which they never performed their duties, can come to be assailed by them, without attracting against them the principles of waiver, abandonment, and, estoppel, nor any demur, as purportedly arises from theirs accepting the afore regularization can work any hardship against them, as, they, since the making of the impugned Annexure P-2, promptly instituted the extant writ petition. Since, this Court while dealing with CMP No. 10974 of 2010, had on 30.08.2012 made an order that the implementation of office Annexure P-2 shall remain stayed till the final disposal of the main petition. Therefore, the effect of the afore order is that the petitioners are since the date of their initial engagement as Clerks, on a daily wage basis under the respondents, and, upto the decision being made upon their writ petition, hence continuing to work as Clerk(s) under the respondents, dehors the making, of, the impugned Annexure P-
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11. For the foregoing reasons, there is merit in the extant writ petition, and, it is allowed. The impugned Annexure P-2 is quashed, and, set aside. The respondents are directed to, within three weeks from today, make an order for regularization of the writ petitioners against the posts of Clerks, upon, theirs engagement as Clerks on a r to completing eight years from the date(s) of their respective daily wage basis, under the respondents. Furthermore, the respondents are also directed to mete to them all pecuniary benefits incidental to the post of clerks. All pending applications also stand disposed of.
(Sureshwar Thakur) Judge 9th July, 2021.
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