Himachal Pradesh High Court
Sh.Durga Dev Sharma vs State Of H.P. & Another on 25 May, 2016
Author: Sandeep Sharma
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL
PRADESH SHIMLA
LPA No.367 of 2011
.
Judgment Reserved on: 12.05.2016
Date of decision: 25.05.2016
Sh.Durga Dev Sharma ....Appellant
Versus
State of H.P. & Another ....Respondents
of
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting ?1 Yes.
For the Appellant: Mr.C.N. Singh, Advocate.
For the Respondents: Mr.Shrawan Dogra, Advocate General
with Mr.Romesh Verma & Mr.V.S.
Chauhan, Additional Advocate General
and Mr.J.K. Verma, Deputy Advocate
General.
Sandeep Sharma,J.:
Present appeal is directed against the judgment dated 27.05.2011 passed by the learned Single Judge of this Court in CWP(T) No.9374 of 2008, whereby the writ petition filed by the petitioner (appellant herein) was dismissed, (for short 'impugned judgment').
1Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 20:26:45 :::HCHP 22. Briefly stated, the facts of the case are that the petitioner, who was engaged as a daily waged .
Beldar/Chokidar on muster roll basis on 5.7.1990, approached the erstwhile H.P. State Administrative Tribunal by way of Original Application No.990 of 2003 (in short `OA No.990/2003'), praying therein that respondents may be directed to regularize him on the post of Typist/Clerk w.e.f.
of 5.7.1998, with all consequential benefits of salary and seniority etc. It is averred in the aforesaid OA that since a rt regular post of Typist/Clerk in drawing branch of respondent No.2 fell vacant in the year 1990, which due to the administrative difficulty could not be filled in the regular course, respondents engaged the petitioner as daily waged Beldar/Chowkidar on muster roll basis on 5.7.1990 and kept him posted in the drawing branch uninterruptedly till 13.3.2003 for carrying on typing/clerical duties. He further submitted that at the time of engagement, he was matriculate with English/Hindi typing training/experience, as such, he was eligible under the R&P Rules for the appointment of regular post of Typist/Clerk. The petitioner also submitted that he had completed 240 days in each calendar year ever since his appointment as a daily waged Beldar i.e. from ::: Downloaded on - 15/04/2017 20:26:45 :::HCHP 3 5.7.1990 to 13.3.2003 and during this period he only performed typing/clerical work in the drawing branch but his .
engagement has been shown on the record as Beldar/Chowkidar against works/schemes which was being carried out in the Division. He, in support of his aforesaid contention, placed on record Annexures A2A to A2G, the record showing that he was doing the work relating to of typing/clerical. He further averred that since he had become eligible for regularization on the existent vacancy of Typist/Clerk, rt after completion of eight years as per Regularization Scheme formulated by the State Government, he made representations dated 5.5.1998 and 22.5.1998 vide Annexures A3A and A3B to the competent Authority. It is also averred that though work of Typist/Clerk was being taken from him w.e.f. 5.7.1990 to 3.1.2003, but actually he was paid the wages of Beldar/Chowkidar for the aforesaid period.
3. In the aforesaid background, petitioner earlier also filed OA No.849/1998, praying therein for regularization of his services as Typist/Clerk i.e. A4A. Since, during the pendency of the said OA No.849/1998, his services were regularized on the post of Beldar in the pay scale of Rs.2620- ::: Downloaded on - 15/04/2017 20:26:45 :::HCHP 4 4140 vide order dated 26th December, 2002 i.e. A5A, he withdrew the said OA on 12.3.2003 with liberty to file afresh .
i.e. present OA No.990/2003 on the basis of fresh cause of action which accrued to him subsequent to his regularization as Beldar. Petitioner, after his regularization as Beldar, was posted in IPH Sub Division w.e.f. 13.3.2003 (A7A & A7B).
4. Petitioner thereafter filed fresh OA bearing of No.990 of 2003 on the same and similar grounds, which is the subject matter of this petition, praying same reliefs as rt were prayed in OA No.849/1998. However, after the abolition of H.P. State Administrative Tribunal (in short `Tribunal'), this OA came to be registered as CWP(T) No.9374/2008 in this Court, which was dismissed by the learned Single Judge, rejecting his prayer of regularization on the post of Typist/Clerk, w.e.f. 5.7.1998.
5. Respondents, by way of detailed reply filed to the said OA No.990/2003, refuted the claim of the petitioner for regularization as Typist/Clerk and submitted that earlier OA No.849/1998 was dismissed for non-prosecution by the Tribunal vide order dated 5.11.1998 and as such present petition bearing OA No.990/2003 is not maintainable. Apart from above, objection with regard to the limitation was also ::: Downloaded on - 15/04/2017 20:26:45 :::HCHP 5 taken by the respondents, whereby they stated that petition is hopelessly time barred, as the same has been filed after 13 .
years. Respondents submitted that petitioner was initially appointed as Beldar in the year 1990, regularized on the same post and till his regularization he had been working as such, which fact is evident from the muster roll and vouchers of wages received by him. It was specifically denied that the of petitioner was ever engaged to work as Typist/Clerk in the drawing branch of the respondent-department. To the rt contrary, he was engaged as Beldar in the year 1990 and was paid wages accordingly which were accepted by him without any demur. It is also submitted that the post of Typist/Clerk is Class-III post, which is filled under R&P Rules through SSC & HPPSC and not on daily wages and, as such, any claim, being put forth by the petitioner for appointment as a Clerk, is not sustainable. It is further stated by the respondent that the petitioner never became eligible for being regularized as Typist/Clerk on the basis of Regularization Policy of the Government and hence his representations were ignored.
However, he only became eligible for being regularized as Beldar, as per the policy of Government and was ::: Downloaded on - 15/04/2017 20:26:45 :::HCHP 6 subsequently regularized as such vide letter dated 26.12.2002 (Annexure RA-II) of the Executive Engineer.
.
6. In the aforesaid background, petitioner has filed this appeal assailing the impugned judgment passed by learned Single Judge, whereby his prayer for regularization on the post of Clerk was rejected.
7. We have heard learned counsel for the parties of and have gone through the record of the case.
8. Perusal of the pleadings made available to the rt Court, while deciding the case, clearly suggest that the petitioner was appointed as a daily waged Beldar on 5.7.1990, on muster roll basis, in the respondent-
department. Thereafter, his services were regularized by the respondents on the same post in the pay scale of Rs.2620- 4140 vide order dated 26th December, 2002 and, as such, the claim of the petitioner for regularization on the post of Typist/Clerk does not appears to be tenable at all. It is undisputed that the petitioner joined the respondent-
department as a Beldar w.e.f. 5.7.1990 and was regularized on the same post on 3.1.2003. Perusal of Annexure A5A suggests that vide Office Order dated 26.12.2002, an offer was given to the petitioner for his appointment, purely on ::: Downloaded on - 15/04/2017 20:26:45 :::HCHP 7 temporary basis, on the post of Beldar in the pay scale of Rs.2620-4140, pursuant to which on 3.1.2003, vide .
Annexure A5B, petitioner gave his joining subject to his right for regularization as Typist/Clerk. Further, perusal of Annexure A7A suggests that consequent upon his joining as work-charge Beldar on 3.1.2003, he was posted in IPH Sub Division, Reckong Peo in the capacity of Beldar. Careful of perusal of the aforesaid Annexures clearly establish that services of the petitioner were regularized on the post of rt Beldar against which he was initially appointed in the year 1990. Hence, any claim of the petitioner for regularization against the post of Typist/Clerk appears to be ill-founded and cannot be accepted in the facts and circumstances of the case. As far as taking the work of typing/clerical from the petitioner by the department, as has been claimed during 5.7.1990 till 30.3.2003, is concerned, the same cannot be accepted solely on the basis of Annexure A2E, letter dated 17.2.1998, issued by the office of District Election Officer, from perusal of which it cannot be concluded that the petitioner was appointed as a Clerk in the office of Executive Engineer, IPH Division, Reckongpeo, because as per the aforesaid Office Order, officials mentioned therein were ::: Downloaded on - 15/04/2017 20:26:45 :::HCHP 8 directed to join their duties in their respective offices. The petitioner cannot be allowed to take benefit of this Office .
Order, where he has been shown to be designated as Clerk, because admittedly the District Election Officer was not his Appointing Authority, rather, his services alongwith other officials were taken by this Office during election. As has been observed/mentioned above, that the petitioner was only of regularized in the year 2002 that too against the post of Beldar and, as such, any claim with regard to regularization rt against the post of Clerk appears to be untenable, especially in view of the fact that there is no document available on the record to suggest that the petitioner was ever initially appointed against the post of Clerk/Typist in the office of the respondents. Merely by placing on record certain documents purportedly typed by him cannot be a ground for seeking regularization against the post of Typist/Clerk in the office of respondents.
9. In the present case, undisputedly petitioner was appointed as Beldar in the respondent-department and continued to work on the same post till regularization and, as such, he has no indefeasible right to claim regularization on the post of Typist/Clerk solely on the ground that he was ::: Downloaded on - 15/04/2017 20:26:45 :::HCHP 9 doing the typing/clerical work. This Court in Pritam Chand and another vs. State of Himachal Pradesh and others, .
LPA No.174 of 2011,decided on 04.05.2016, has also taken similar view.
10. In view of aforesaid discussion, we do not see any reason to interfere with the impugned judgment and, as such, the same is upheld. Accordingly, the appeal is dismissed of alongwith all pending applications.
rt (Mansoor Ahmad Mir)
Chief Justice
May 25, 2016 (Sandeep Sharma)
(aks) Judge
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