Himachal Pradesh High Court
Kusuma Devi vs State Of H.P. And Others on 1 May, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 7787 of 2019
.
Decided on: 01.05.2023
Kusuma Devi ....Petitioner.
Versus
State of H.P. and others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Arun Kumar, Advocate.
For the respondents: M/s Pushpender Jaswal and Baldev Negi, Additional
Advocate Generals, with Mr. Gautam Sood, Deputy
Advocate General.
Ajay Mohan Goel, Judge (Oral):
By way of this petition, originally filed as an Original Application before the erstwhile learned Himachal Pradesh Administrative Tribunal, the petitioner has sought the relief of quashing of termination order dated 18th March, 2016 (Annexure A-2) with further direction to the respondents to regularize her services in terms of the Policy of the State.
2. The case of the petitioner is that she was initially engaged as a Daily Paid Worker in the year 1990 in Himachal Pradesh Fruit Processing Centre Dhaulakuan, District Sirmaur, H.P. Her services were dispensed with in December, 1991. Thereafter, she was re-engaged in the year 2010 at Horticulture Department's Sale Shop at Sujanpur. She was assigned the work of sale of products and maintenance of stock/sale register 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/05/2023 20:33:43 :::CIS 2etc. She was thus performing multifarious tasks in the course of her job. She worked from 9 a.m. to 5 p.m. minimum and had also completed more than .
240 days in each calendar year from the year 2010 onwards. She was getting the salary on daily wage basis and her signatures were taken by the respondent-Department on bills of payment reflecting that she was working under a Contractor, which was totally incorrect. It was further the case of the petitioner that she made several requests with regard to regularization of services, yet her services were not being regularized and to the contrary, her services stood terminated illegally in terms of order dated 18.03.2016 (Annexure A-2), in terms whereof, the instructions were issued by the Authority to do away with the services of the petitioner and other similarly situated persons.
3. The petition is resisted by the State, inter alia, on the ground that the petitioner was engaged on hourly basis w.e.f. 02.09.2010 for seasonal work and was continued in subsequent years subject to availability of work and funds at Horticulture Department's Sale Shop at Sujanpur, H.P. She was also helping the regular technical staff of the Fruit Processing Unit in performance of various activities, but she was not eligible for regularization in terms of the Policy of the Government, as she was not fulfilling the requisite criteria. It was further the stand of the respondents that there was no illegality in the act of the Department of disengaging the services of the petitioner in compliance to the directions issued by the Government from time to time, in terms whereof, no recruitment of the daily waged/muster roll worker was to be ::: Downloaded on - 04/05/2023 20:33:43 :::CIS 3 made by the Department /Board etc. without the approval of the Finance Department.
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4. Before proceeding further, it is pertinent to mention that in terms of order dated 28.06.2016, passed by the erstwhile learned Himachal Pradesh Administrative Tribunal, respondents were directed to allow the petitioner to continue to work as before subject to availability of work and this order is in operation till date. On the last date of hearing, this Court had directed the State to produce the record relatable to the engagement of the petitioner and the relevant record that stands produced by the learned Deputy Advocate General demonstrates that the petitioner was engaged in the year 2010. She had put in the following number of days in each calendar year as from the year 2010 onwards: in 2010: 116 days, in 2011:346 days, in 2012:325 days, in 2013: 310 days, in 2014:262 days, in 2015:256 days, in 2016:174 days, in 2017:190 days, in 2018:185 days, in 2019:262 days and in 2020: 285 days and so on and so forth. It is also not much in dispute that the petitioner is still continuing in service on the strength of the order passed by the learned Tribunal.
5. I have heard learned counsel for the petitioner as also learned Deputy Advocate General and have also gone through the pleadings as well as the documents appended therewith.
6. The grievance of the petitioner has already been mentioned by me hereinabove. The termination of the services of the petitioner in terms of Annexure A-2, dated 18.03.2016, inter alia, is on the ::: Downloaded on - 04/05/2023 20:33:43 :::CIS 4 ground that the engagement of seasonal workers without permission of the Government is in violation of the instructions issued in this regard by the .
Government and the incumbents who have been engaged on hourly basis should not be engaged without the approval of the Government. The work that is being performed by the petitioner, which has not been disputed in the course of arguments, is that the petitioner is performing the work of sale of products and maintenance of stock/sale register etc. at Horticulture Department's Sale Shop at Sujanpur. On the strength of the instructions so received, learned Deputy Advocate General has fairly submitted to the Court that though on record the engagement of the petitioner is on hourly basis and her wages are also being paid to her by making calculation on hourly basis, but the fact of the matter remains that the petitioner is performing her job full day, i.e., from morning to evening, like any other worker.
7. The very fact that the petitioner continued to be in service from 2010 up to 2016 when the termination order was passed by the Authority concerned demonstrates that the work was available, against which she was deployed. In fact, even the language of Annexure A-2 demonstrates that the services of the petitioner were not being dispensed with for want of work, but for the reasons mentioned therein, which has got nothing to do with the availability of the work. That being the case, this Court is of the considered view that dispensing with the services of the petitioner in terms of Annexure A-2 and that too without appreciating the factum of the petitioner religiously performing her duties was nothing, but an arbitrary act which is not ::: Downloaded on - 04/05/2023 20:33:43 :::CIS 5 sustainable in the eyes of law, as it is a matter of record that the petitioner was performing her duties from the year 2010 minimum from 9:00 a.m. to .
5:00 p.m. in Horticulture Department's Sale Shop at Sujanpur. This order, therefore, is liable to be quashed and set aside as the reasoning assigned therein to do away with the services of the petitioner and similarly stated persons is not sustainable in law. Workman like the petitioner cannot be used as a comodity of the Government for a long time and thereafter, permitted to be dumped to deny them the benefits of the Policy of regularization of daily waged workers. In this case, de hors as whatsoever the nomenclature of the petitioner is, the fact of the matter remains that she is serving from 9:00 a.m. to 5:00 p.m. just like any other Daily Waged Worker and in this process has completed more than 240 days in umpteen number of years. That being the case, rather than regularizing the services of the petitioner, the act of the respondents of dispensing with her services is therefore also not sustainable in the eyes of law.
8. In these circumstances, this petition is disposed of with the direction that the case of the petitioner for regularization be considered by the respondents by deeming her first year to be the year of 2010 and by condoning the short fall in completion of requisite number of days' in the years 2010, 2016 & 2017 and thus consider the case of regularization of the petitioner post completion of 8 years of service as from the year 2010 or upon completion of such number of years as is there in the Policy, in terms whereof, the petitioner would be eligible for regularization with all ::: Downloaded on - 04/05/2023 20:33:43 :::CIS 6 consequences, but with the rider that monetary consequences as from the date of regularization would be deemed and actual benefits will accrue as .
from the date of passing of this judgment. Taking into consideration the peculiar facts that are involved in the present case, it is directed that supernumerary post for the purpose of regularization of the petitioner be created by the State Government, if necessary, as a measure personal to the petitioner, so that justice can be done to her. Petition stands disposed of in above terms, so also pending miscellaneous application, if any.
r (Ajay Mohan Goel)
Judge
May 01, 2023
(bhupender)
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