Himachal Pradesh High Court
Sanjay Kumar & Ors vs State Of H.P. & Ors on 24 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No. 1959 of 2019.
Reserved on : 9th May, 2024.
.
Date of Decision : 24th May, 2024.
Sanjay Kumar & Ors. ...Petitioners.
Versus State of H.P. & Ors. ....Respondents.
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners: Mr. Sunil Mohan Goel and Mr. Raman Jamalta, Advocates.
For Respondent No.1 to 3: Mr. Dalip K. Sharma, Addl. A.G. and Ms. Avni Kochhar, Dy. A.G. For Respondent No.4: Mr. Shiv Pal Manhans, Senir Panel Counsel.
Satyen Vaidya, Judge.
By way of instant petition, the petitioners have prayed for following substantive reliefs:-
"(i) That this Hon'ble Court may be pleased to issue writ of certiorari quashing the impugned communication dated 21.05.2012 (Annexure P-
9) issued by the Respondent No.1, and further communication dated 1.6.20012 (Annexure P-
10) issued from the office of Additional Director 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 24/05/2024 20:36:33 :::CIS
...2...
General of Police, Armed Police and Training HP Shimla whereby the representation of the .
petitioners for regularizing them have been rejected.
(ii) That this Hon'ble Court may be pleased to issue writ of mandamus to the respondents directing them to regularize the services of the petitioners as had been done in the case of similarly situated persons who were appointed in 4th and 5th Indian Reserve Battalion. The respondents may be directed by way of writ of mandamus to grant to the petitioner all other benefits which are being allowed to the regular employees."
2. Petitioners were appointed in 6th IRBn (Indian Reserve Battalion) Kolar at Nahan, District Sirmour, Himachal Pradesh on different posts. Petitioners No.1 to 33 were appointed on daily basis and petitioners No.34 to 36 were appointed on contract basis. The details with respect to the petitioners are as under:-
Petitioner Name of Post Name and Date/year of No. Petitioner status appointment.
1. Sanjay Kumar s/o Cook 2011 late Sh. Jaisi Ram Daily wages
2. Raj Kumar s/o Sh. Cook 21.10.2011 Roshan Lal Daily Basis
3. Sunil Kumar Cook 12.09.2012 s/oSh. Tek Singh Daily Basis
4. Rinku s/o Sh. Cook 16.11.2011 Roop Lal Daily Basis
5. Deepak Kumar Cook 12.07.2012 s/o Sh. Karam Daily Basis Chand
6. Devinder Kumar Cook 13.07.2012 ::: Downloaded on - 24/05/2024 20:36:33 :::CIS ...3...
s/o Sh. Vikram Daily Basis
Singh
.
7. Chitender Kumar Cook 12.09.2012
s/o Sh. Daily Basis
Dhameshwar Dutt
8. Rakesh Kumar s/o Cook 2011...
Sh. Amar Singh Daily Basis
9. Hoshiar Singh s/o Water Carrier 15.9.2011
Sh. Amar Nath Daily Basis
10. Satish Kumar s/o Water Carrier 21.10.2011
Sh. Narayan Daily Basis
Singh
11. Jatinder Kumar Water Carrier 17.09.2011
s/o Sh. Gian Daily Basis
Singh
12. Moni Kumar s/o Water Carrier 16.11.2011
Sh. Bhag Singh Daily Basis
13. Daya Ram s/o Sh. Water Carrier 21.10.2011
Nathu Ram Daily Basis
14. Ashit Kumar s/o Water Carrier 11.07.2012
Sh. Manohar Daily Basis
Singh
15. Davinder Kumar Water Carrier 12.7.2012
s/o Sh. Bal Daily Basis
Krishan
16. Hari Krishan s/o Water Carrier 10.09.2012
Sh. Tej Ram Daily Basis
17. Dinesh Kumar s/o Water Carrier 12.07.2012
Sh. Joginder Daily Basis
18. Ashok Kumar s/o Washerman 21.09.2011
Sh. Bakshi Ram Daily Basis
19. Lalit Kumar s/o Washerman 15.12.2011
Sh. Chamari Ram Daily Basis
20. Manoj Kumar s/o Washerman 11.07.2012
Sh. Madan Lal Daily Basis
21. Rai Singh s/o Sh. Washerman 11.07.2012
Pritam Singh Daily Basis
But engaged as
Cook on daily Basis
22. Tej Singh s/o Sh. Barber 15.12.2012
Bhaindu Daily Basis
23. Kamal Kishor s/o Barber 11.07.2012
Sh. Yashpaul Daily Basis
24. Rakesh Kumar s/o Barber 11.07.2012
Sh. Amin Chand Daily Basis
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25. Alok Bharti s/o Sweeper 11.07.2012
Sh. Pradeep Daily Basis
.
Bharti
26. Pappu Ram s/o Sweeper 11.07.2012
Sh. Prem Chand Daily Basis
27. Chuni Lal s/o Sh. Sweeper 03.09.2012
Sant Ram Daily Basis
28. Puran Chand s/o Sweeper 10.9.2012
Sh. Dhale Ram Daily Basis
29. Pankaj Kumar s/o Sweeper Daily Basis 16.11.2011
Sh. Bhagi Rath
30. Ravinder Kumar Sweeper 12.07.2012
s/o Sh. Chain Daily Basis
Singh
31. Pankaj Kumar s/o Sweeper Daily Basis 17.09.2011
Sh. Manohar Lal
32.
Kamal Kishor s/o Sweeper 21.10.2011
Sh. Jiwan Singh Daily Basis
33. Sansar Chand s/o Sweeper 20.07.2012
Sh. Prakash Daily Basis
Chand
34. Arvind Kaundal Clerk 12 August
s/o Sh. Uttam On Contract Basis 2011
Singh Kaundal
35. Khusvinder Clerk 12th August,
Kumar s/o Sh. On Contract Basis 2011
Hari Krishan
36. Sushil Kumar s/o Clerk 12th August,
Sh. Duni Chand On Contract Basis 2011
3. The petitioners claim their respective
appointments in 6th IRBn on regular basis from the very inception. As per the petitioners, the Government of India vide communication dated 14th May, 2009, conveyed the sanction for raising one IRBn by the Government of Himachal Pradesh. The Central Government undertook to reimburse 75% of the standard cost on raising and 50% of the capital ::: Downloaded on - 24/05/2024 20:36:33 :::CIS ...5...
cost. The strength of IRBn was to be of 1007 personal. The .
Government of Himachal Pradesh vide notification dated 17.11.2009, ordered the raising of 6 th Indian Reserve Battalion and creation of 1007 posts of various categories for such battalion.
4. Petitioners have also contended that immediately preceding the sanction by the Government of India for creation of 6th IRBn two more IRBn were sanctioned in State of Himachal Pradesh being 4th and 5th IRBns. The process for recruitment against the posts sanctioned for each of these IRBns were initiated. Except for the appointments of petitioners on daily wage and contract basis, all other employees in 4th, 5th and 6th IRBns were appointed on regular basis.
5. As per the petitioners, in their respective call letters for participation in selection process, it was never represented that they would be appointed on daily wage or contract basis. It was only when they were offered appointments that the petitioners came to know for the first time that they were offered appointments on daily and contract basis. Petitioners had no option but to accept the ::: Downloaded on - 24/05/2024 20:36:33 :::CIS ...6...
appointments at that stage, however, immediately thereafter .
they submitted representations to the competent authority.
The Commandant of 6th IRBn recommended the case of the petitioners to the Additional Director General of Police (AP & T) Himachal Pradesh vide correspondence dated 31.12.2011.
The Director General of Police, Himachal Pradesh also forwarded the representations of the petitioners to the Principal Secretary (Home), Government of Himachal Pradesh with a request for sympathetic consideration and necessary action. The Director General of Police, Himachal Pradesh, even recommended the case of the petitioners separately vide correspondence dated 4.4.2012. The Principal Secretary (Home), Government of Himachal Pradesh, rejected the representations of the petitioners as also the recommendations made by the Commandant 6 th IRBn and Director General of Police, Himachal Pradesh vide communication dated 21.05.2012 which reads as under:-
"I am directed to refer to your d.o. letter No. Pers. III(1)Rep.MS/2012-10935, dated 04.04.2012 on the subject cited above and to say that the matter has been examined in consultation with Finance ::: Downloaded on - 24/05/2024 20:36:33 :::CIS ...7...
Department and the same has not been exceeded .
to."
6. Petitioners thereafter approached this Court by way of instant petition.
7. The respondents have contested the claim of the petitioners. As per the respondents, the petitioners are estopped to agitate the matter on account of their acts, conduct and acquiescence. It has been submitted that before making appointments the posts were advertised and it had been made clear that vacancies would be filled up on daily wages/contract basis. Since, the petitioners had participated in the selection process knowingly fully well the nature of jobs likely to be offered to them, were not entitled to raise the issue. It has also been submitted that the petitioners were to be regularized in accordance with the policy of the Government. Respondents have also justified their action on the ground that it is the prerogative of the State to appoint the employees on contract or daily wage basis keeping in view the administrative and public interest.
8. Petitioners by way of rejoinder have controverted the stand of the respondents. The averments with respect to ::: Downloaded on - 24/05/2024 20:36:33 :::CIS ...8...
advertisement having been issued for initiation of selection .
process for appointments to the posts in 6 th IRBn has specifically been denied. It has been reiterated that the petitioners had received the call letters directly for participation in the selection process as their names were sponsored by respective employment exchanges in response call letters to to the requisition made by the respondents. In the interview there was no mention of the posts to be filled either on daily wage basis or contract basis.
9. I have heard learned counsel for the parties and have also gone through the entire record carefully.
10. The only fact that has been disputed by the parties is prior knowledge, if any, of the petitioners with respect to the posts being intended to be filled in 6th IRBn on daily or contract basis. As noticed above, the respondents have taken a specific stand that such posts were advertised and petitioners were fully aware about the the appointment to be made in 6th IRBn on daily and contract basis. The petitioners have specifically denied such averments and have placed on record some of the interview call letters received by them.
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11. Respondents have not placed on record any .
document to substantiate the plea that the posts against which the petitioners were appointed had been advertised and the nature of appointments was previously notified to the petitioners, therefore, the adverse inference has to be drawn against the respondents and presumption can be raised that correct.
r to the plea so raised by the respondents was not factually
12. On the other hand, the petitioners have placed on record interview call letters in which there was no mention of the vacancies to be filled on daily or contract basis.
13. It being so, the plea of estoppel against the petitioners is not available to the respondents.
14. The respondents have also not denied that except for the posts against which the petitioners were appointed, all other posts in 4th, 5th and 6th IRBn were filled on regular basis.
The sanction accorded by the Government of India for raising 6th IRBn also did not place any condition for appointments to be made by any other mode other than regular appointments.
Further, notification dated 17.11.2009 issued by the Government of Himachal Pradesh also did not lay any such ::: Downloaded on - 24/05/2024 20:36:33 :::CIS ...10...
condition or exception. Creation of 6 th IRBn was ordered .
along with creation of 1007 posts of various categories.
Since, 4th, 5th and 6th IRBns were sanctioned and created in the State of Himachal Pradesh for which Central Government had undertaken to provide 75% of standard cost of raising and 50% of capital cost, these establishments were specially establishment r were to created and for that matter the creation of posts in such governed by special circumstance.
Noticeably, no Recruitment and Promotion Rules were framed for recruitment to various posts crated in these battalions. In such circumstances, the contention of respondents that it had prerogative to fill posts on contract or daily wage basis, cannot be countenanced. The administrative discretion has to be founded on reasons backed by fairness and reasonableness. The respondents have failed to justify the filling of few posts on daily and contract basis out of all the posts created for 4th, 5th and 6th IRBns, which manifests arbitrariness and violates Articles 14 and 16 of the Constitution of India.
15. The administrative action besides being fair and reasonable is to have support or backing of some legislative ::: Downloaded on - 24/05/2024 20:36:33 :::CIS ...11...
action. In the case in hand, despite issuance of notification by .
the Government of Himachal Pradesh on 17.11.2009 to create 1007 posts of various categories, a communication was issued on the same day by the Principal Secretary (Home) to the Director General of Police to fill up some of the posts in 6 th IRBn either on promotional basis or on daily/part time/contract basis.
The petitioners have taken specific exception to the communication dated 17.11.2009 issued in this behalf but the respondents have not been able to justify it by bringing on record the backing of any legislative action to such communication.
16. The fact that even Commandant 6 th IRBn and Director General of Police, Himachal Pradesh had recommended the case of the petitioners also cannot be ignored. It is evident from the recommendations made by the said officials that they had also found the treatment being given to the petitioners as discriminatory, unjustified and thus not in the interest of the force as a whole.
17. In the light of above discussion, the petition is allowed and the orders/ communications dated 21.05.2012 (P-
9) and 01.06.2012 (P-10) are quashed. The respondents are ::: Downloaded on - 24/05/2024 20:36:33 :::CIS ...12...
directed to consider the appointments of the petitioners in .
their respective cadres on regular basis from the very inception and to grant them all consequential benefits. The entire exercise shall be completed by the respondents within three months from the date of passing of the judgment.
Petition is accordingly disposed of, so also, the pending applications, if any.
r to (Satyen Vaidya)
Judge
24th May, 2024.
(jai)
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