Himachal Pradesh High Court
Nikku Ram & Ors vs State Of H.P. & Ors on 21 November, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
( 2024:HHC:11949 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5574/2024 Decided on: 21.11.2024 Nikku Ram & Ors. ...Petitioners Versus State of H.P. & Ors.
....Respondents.
.......................................................................................... Coram Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 For the petitioner : Mr. Adarsh K. Sharma Advocate. For the respondents. : Mr. Sikander Bhushan, Deputy Advocate General.
Jyotsna Rewal Dua , J Petitioners seven in number have laid challenge to the order dated 06.05.2024 passed by the respondents rejecting their representations for regularizing the break period in their service in different years ranging from 2000-2008.
2. Facts 2(i) Petitioners were engaged as daily wagers in Chamba Forest Division in different years. They continued to serve with the respondents, however, could not complete 240 days in some of the calendar years and were short by following days in following calendar years:-
1
Whether reporters of the local papers may be allowed to see the judgment? yes 2 ( 2024:HHC:11949 ) SI. No Name Year No. Days 1 Niku Ram 2000 10 Days 2001 20 Days 2003 27 Days 2004 65 Days 2 Kirpa Ram 2000 45 Days 2001 35 Days 2002 35 Days 2003 42 Days 2004 13 Days 3 Madan 2002 92 Days 4 Mahinder 2000 245 Days Singh 2004 184 Days 2005 47 Days 5 Babu Ram 2000 65 Days 2005 140 Days 2006 4 Days 6 Rattan 2000 140 Days Chand 2001 136 Days 2002 191 Days 2003 192 Days 2004 3 Days 2006 94 Days 2008 16 Days 7 Dharo 2000 45 Days 2001 114 Days 2002 75 Days 2003 20 Days 2(ii) The respondents regularized the services of one similarly situated daily wager namely Sh. Varinder Singh S/o Shri Bhagat Singh after considering his medical certificates for different 3 ( 2024:HHC:11949 ) years and condoned the period of break in his service in different years i.e. 2000, 2005 & 2006 on the basis of said certificates. Sh.
Varinder Singh was regularized on 07.12.2009. 2(iii) Petitioners alongwith two others namely S/Sh. Palvinder and Jai Singh preferred CWP No.8746/2011 seeking work charge status/regularization on completion of 8 years of service on the analogy of case of Sh. Varinder Singh in whose favour medical certificates given by a private practitioner/doctor namely Dr. Surender Mohan Sharma were considered for the purpose of regularization and seniority. During pendency of the said petition, services of the petitioners were regularized except Sh. Jai Singh. CWP No. 8746/2011 re-registered as T.A No. 887/2015 was disposed of by erstwhile H.P. Administrative Tribunal on 04.01.2019 granting liberty to the petitioners to make representations to respondent No.2 with further direction to the said respondent to decide the same in accordance with law.
Respondents though made inter-departmental communications on the subject matter on 05.11.2020 & 19.11.2020, however, final decision was not taken. Services of the petitioners were regularized in the meanwhile.
2(iv) Petitioners preferred Nikku Ram & Ors. Vs. State of H.P. & Ors.2 seeking modification in their regularization orders by 2 CWP No. 3308/2023 decided on 31.05.2023 4 ( 2024:HHC:11949 ) treating them at par with Sh. Varinder Singh. The writ petition was disposed of on 31.05.2023 with direction to the petitioners to make representations to respondent No.2 within two weeks and respondent No.2 (therein) was to decide the same within six weeks. Petitioners' representations have now been rejected by the respondents vide order dated 06.05.2024. Feeling aggrieved, they have preferred this writ petition.
3. The petitioners have prayed for condoning the break in their services in different years on the basis of medical certificates produced by them before the respondents at the relevant time. These medical certificates have been issued by a private practitioner/doctor namely Sh. Surender Mohan Sharma. Petitioners have made this prayer on the analogy of similar prayer having been considered and granted by the respondents in a similar case of one Sh. Varinder Singh, where the respondents had considered the medical certificates issued by the same private practitioner/doctors for condoning the break period in the years 2000, 2005 & 2009. Break period in different years in the service of aforesaid Sh. Varinder Singh on medical ground on the basis of medical certificates was condoned, however, in cases of the petitioners, the respondents vide impugned order have declined to grant the same benefits to the petitioners with following reasoning:- 5
( 2024:HHC:11949 ) "Whereas, the Government vide letter No. FFE-A(E)2-304/2012 dated 25.05.2012, had issued instructions regarding consideration of Medical Certificates of daily wagers which is as under:
"I am directed to refer to the subject cited above and to say that it has been observed that the department has regularized some of the daily waged employees without approval of the Government at their own level after considering their medical certificates Issued by the Private Practitioners/Doctors for long duration/period of absence. As a result, some jumiors have been regularized and seniors have been left out. Now after careful consideration, the Government has decided that in future no medical certificates issued by Private Practitioners/Doctors will be accepted/entertained by the Department as such certificates are being issued to circumvent the well designed absence from the service and then take shelter of such so called post dated medical certificate for their regularization/service benefits."
4. The respondents in the aforesaid extracted para of the impugned order have given one reason for rejecting the case of the petitioner that is medical certificates issued by the private practitioner/doctor cannot be accepted in view of Government instructions dated 25.05.2012. The reasoning given by the respondents for rejecting the case of the petitioners cannot be accepted. Firstly, the cited Government instructions are applicable for future, these cannot be applied retrospectively to the petitioners in whose cases the medical certificates were issued by the private practitioner/doctor for the different years but prior to 2012. 6
( 2024:HHC:11949 ) Secondly, respondents had themselves considered the case of regularization of Sh. Varinder Singh on the basis of medical certificates issued by the same private practitioner/doctor and condoned the break in his service by counting the period towards service. The respondents could not have adopted different yardstick for the petitioners. Accordingly, impugned order dated 06.05.2024 (Annexure P-7) is set aside. Respondent No.2 is directed to consider the cases of the petitioners afresh, in accordance with law within a period of three weeks. The decision so arrived at shall also be communicated to the petitioners. Pending miscellaneous application(s), if any, also stand disposed of.
Jyotsna Rewal Dua Judge 21st November, 2024 (rohit)