Himachal Pradesh High Court
Balbir & Others vs State Of Himachal Pradesh & Others on 2 September, 2020
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No.386 of 2019
Decided on: 02.09.2020
Balbir & others ....Petitioners.
Versus
State of Himachal Pradesh & others ... Respondents.
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the petitioners : Mr. R.L. Chaudhary, Advocate.
For the respondents : Mr. Sumesh Raj, Mr. Dinesh Thakur
and Mr.Sanjeev Sood, Additional
Advocate Generals.
(Through Video Conferencing).
Ajay Mohan Goel, Judge (Oral)
Despite three opportunities having been granted, Supplementary Affidavit has not been filed in terms of the previous order passed by this Court. Learned Counsel for the petitioners submits that despite Registered Letter having 1 Whether reporters of the local papers may be allowed to see the judgment?
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been written to the petitioners, they are not responding.
Accordingly, the matter is being heard on merits.
By way of this petition, petitioners have prayed for the following reliefs: " (i) that writ in the nature of mandamus may kindly be issued, directing the respondent department not to give any fictional breaks to the petitioners being Bandsmen in view of Annexure P1 the decision of the Government since the petitioners are continue Home Guards from last 2023 years.
(ii) That writ in the nature of mandamus may kindly be issued, directing the respondent department to give wages of equal rank of police department to the petitioners in view of their appointment conditions being members of Home Guards since the petitioners are in continuous service of whole time of the respondent department from last 2023 years.
(iii) That writ in the nature of mandamus may kindly be issued, directing the respondents to give the benefit of work charge status being bandsmen in view of the judgment rendered by the Hon'ble Supreme Court in case titled Mool Raj Upadhaya Vs. State of H.P. since the petitioners are in continuous service being daily paid members of Home Guards from last 2023 years and they have completed more than 10 years of service with 240 days in each calendar years in view of Annexure P1.
(iv) That writ in the nature of mandamus may kindly be issued, directing the respondents to regularization of services of the petitioners as per the policy of the Government of Himachal Pradesh since similarly situated persons holding same and similar qualification ::: Downloaded on - 08/09/2020 20:17:58 :::HCHP 3 .
have been given regular appointment by the respondent department in their Training Centre, Junga.
(v) That writ in the nature of mandamus may kindly be issued, directing the respondents to use whole of the Bands fund for the welfare of Bandsmen and same may not be spent on other activities".
2. The case of the petitioners is that they were r to engaged as Bandsmen (Home Guard) in the year 1983 and as since then they continued to perform their duties of Bandmen (Home Guard), they have a right of being regularized in the Home Guard Department as regular employees of the same in terms of the provisions of Home Guards Act, 1968 as well as receive salary equal to the rank of Police Department.
3. The claim of the petitioners has been resisted by the State inter alia, on the grounds that the petitioners were engaged only on voluntary basis and they continued to work for the reason that the job which they were performing was of a specialize nature, on account of which they were allowed to continue to do the work in issue, however, on voluntary basis.
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4. It is further the stand of the State that as the petitioners stood recruited on voluntary basis, they have no right either of regularization as has been claimed by them nor they can claim wages at par with the Police Department as
5. the nature of their engagement is on voluntary basis.
In para 16 of the reply filed by the State, it is specifically averred that the petitioners had earlier also filed O.A.(M) No.308 of 2004, before learned Himachal Pradesh Administrative Tribunal, praying for similar reliefs, which Original Application stood dismissed on 27.05.2005 and the order so passed by learned Tribunal, assailed by them by way of Civil Writ Petition No.651 of 2005, in this Court, also met the same fate as the petition filed by the petitioners stood dismissed by this Court, vide judgment dated 26.05.2008.
6. Learned Counsel for the petitioners has fairly submitted that at the time when the writ petition was drafted ::: Downloaded on - 08/09/2020 20:17:58 :::HCHP 5 .
by him, he was not made aware of any such facts by the petitioners.
7. Be that as it may, as it is evident from the reply filed by the State that besides the fact that petitioners having been appointed on voluntary basis, same does not confers upon them any right of regularization, otherwise also as the issue which has been raised by them, has already attained finality in view of the adjudication in O.A.(M) No. 308 of 2004, as upheld by this Court in CWP No.651 of 2005, this writ petition is hit by the principle of resjudicata and the same is accordingly dismissed as being barred by the principle of resjudicata. Pending miscellaneous applications, if any, also stand dismissed. Interim order, if any, stands vacated.
(Ajay Mohan Goel) Judge September 02, 2020 (Rishi) ::: Downloaded on - 08/09/2020 20:17:58 :::HCHP