Himachal Pradesh High Court
Paramjeet Singh vs State Of Hp And Others on 24 April, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 7648 of 2019
Judgment Reserved on 22nd March, 2024
.
Date of decision: 24th April, 2024.
Paramjeet Singh ...Petitioner
Versus
State of HP and others ...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes
For the Petitioner: Mr. Arun Kumar, Advocate.
For the Respondents: Mr.Sanjay Dutt Vasudeva, Deputy Advocate
General.
Vivek Singh Thakur, Judge (Oral)
Petitioner, for redressal of his grievances, had approached the Erstwhile H.P. State Administrative Tribunal on 13th June, 2016 by filing OA No. 2665 of 2016 titled Paramjeet Singh vs. State of HP. On abolition of the Erstwhile H.P. State Administrative Tribunal, the petition was preferred to this High Court and was registered as present petition bearing CWPOA No. 7648 of 2019.
2 Petitioner has approached the Court against his termination in pursuance to communication dated 18.03.2016 (Annexure A-3) whereby by reference of letter No.1580/793, received from the Director, Horticulture Department, direction was issued to remove/terminate the ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 2 CWPOA No.7648 of 2019 petitioner. Petitioner has also made further prayer to extend all consequential benefits for his service such as seniority, arrears, regularization after condoning the fictional breaks.
.
3 As per petitioner, he was engaged as daily wages labourer/contract labourer in the year 2000 in the H.P. Government Community Fruit Processing-cum-Training Centre, Dehra, District Kangra and amongst similarly appointed persons, he was at Sr. No.2 in the Seniority List. To substantiate his plea, petitioner has placed on record the Status/Seniority List-cum-Yearswise days of Engagement of the daily wagers/seasonal contract workers as Annexure A-1 wherein he has been shown at Sr. No.2 with the date of appointment dated 24.10.2000. In aforesaid list, Devinder Kumar was at Sr. No.1 with the date of appointment dated 21.09.2000, whereas Asha Devi is at Sr. No.3 with the date of appointment dated 12.03.2001. Other persons in the Seniority List, below Asha Devi are Vikram (date of appointment 30.03.2001), Nirmala Devi (date of appointment 01.06.2001), Gurpiary (date of appointment 19.06.2001), Chander Shekhar (date of appointment 21.02.2002) and Naresh (date of appointment 6.11.2004).
Petitioner has claimed that job/work assigned to him was in the nature of preparation of pickles, jam, jelly etc. and to impart training to the local people or guide them coming to Centre for training, to clean and maintain the premises, counter sale, to do the gardening work, Chowkidari of premises etc. and accordingly, petitioner has to perform multifarious work and said work was and is available throughout the year. It has also been claimed by petitioner that petitioner had ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 3 CWPOA No.7648 of 2019 completed 240 days in the year 2001 i.e. served for 264 days, i.e. more than 240 days in the calender year 2001 and 245 days in the calender year 2002. However, thereafter by giving fictional breaks, petitioner was .
engaged only for 210, 208, 207 and 227 days in the year 2003, 2004, 2005 and 2006 respectively. However, thereafter, since 2007, he had completed more than 240 days per calender year continuously till 2015 by serving 296, 264, 298, 309, 308, 313, 294 and 258 days per calender year w.e.f. 2007 till 2014. Thereafter, in the years 2015, 2016, 2017, petitioner was again not permitted to complete 240 days but was allowed to work only for 235, 207 and 235 days in these years by fictional breaks. However, thereafter since 2017 till date petitioner has completed more than 240 days in every calender year i.e. 275, 306, 362, 288, 312 and 364 from 2018 till 2023. The aforesaid facts are substantiated from the record of respondents which was produced in Court and on the basis of which, a certificate issued by the Incharge, Processing-cum-Training Centre, Dehra, District Kangra was also placed on record.
4 In reply, respondents have opposed the prayer of petitioner on the ground that petitioner was neither employee of Department nor had been engaged on muster-roll basis but he was assigned work on hourly/piece job worker basis on 24.10.2000 for seasonal work and on subsequent years subject to availability of work and funds at Processing-
cum-Training Centre at Nadaun, District Hamipur, to help the regular technical staff of the fruit processing unit in performing the activities like cutting, washing and cleaning of fruits and vegetables while making fruit ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 4 CWPOA No.7648 of 2019 and vegetable products in the unit during the peak fruit and vegetable seasons subject to availability of funds and thus petitioner is not eligible for regularization. It was contended that vide communication dated .
11.07.1995, it was circulated by the Government that no fresh recruitment of daily wages/muster-roll workers shall be made in any department/Board etc. without approval of the Finance Department and vide communication dated 5.8.2015 instructions were issued by the Finance Department that no vacant post was to be filled without any prior concurrence of Finance Department and approval of the Council of Ministers and therefore, it has been contended that petitioner was rightly dis-engaged by the Department in compliance of Government instructions.
5 Learned Deputy Advocate General by referring judgment of the Supreme Court dated 8th February, 2023 passed in SLP (C ) No. 10519 of 2020 titled Vibhuti Shankar Pandey vs. State of Madhya Pradesh has claimed that in view of aforesaid pronouncement of the Supreme Court, petitioner is not entitled for any relief as her appointment was contrary to the principle of law laid down by the Supreme Court in Secretary, State of Karnataka & others vs. Umadevi and others reported in(2006)4 SCC 1.
6 Learned counsel for petitioner has submitted that there are number of persons engaged like petitioner, whose details have been given in the list, Annexure P-1, and all of them except petitioner have been extended benefits of regularization after completion of 8 years service by implementing and complying with orders passed by Court in ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 5 CWPOA No.7648 of 2019 various petitions preferred by them. He has submitted that the facts and claim in petitions, preferred by these persons, were not only similar, but identical in nature. He has referred judgments dated 1.12.2021 passed .
in CWPOA No. 1833 of 2020 titled Asha Devi vs. State of HP, dated 22.7.2022 passed in CWPOA No. 6748 of 2019 titled Vikram vs State of HP, dated 23.8.2022 passed in CWPOA No. 7640 of 2019 titled Devinder vs. State of HP, dated 23.8.2022 passed in CWPOA No. 4111 of 2020 titled Gurpiari vs. State of HP, dated 21.09.2022 passed in CWPOA No 7632 of 2019 titled Sher Singh vs. State of HP, dated 1.5.2023 passed in CWPOA No. 7787 of 2019 titled Kusuma vs. State of HP, 1.5.2023 passed in CWPOA No.7819 of 2019, titled as Nirmala vs. State of HP, dated 1.5.2023 passed in CWPOA No. 7913 of 2019 titled Naresh vs. State of HP, and dated 6.7.2023 passed in CWPOA No.7932 of 2019 titled Chander Shekhar vs. State of HP.
7 It is relevant to refer that out of 10 persons, mentioned in List Annexure A-1, persons namely Devinder, Asha, Vikram, Nirmala, Gurpiari, Cander Shekhar, Naresh and Sher Singh have been extended service benefits including regularization in terms of above referred decisions passed in their respective cases.
8 It has been submitted by learned counsel for petitioner that all aforesaid decisions, as per information available with petitioner, stand implemented and service benefits including regularization have been extended to all petitioners therein.
9 Petitioner and others were engaged during the period from 2000 to 2007. Whereas, communication dated 5.8.2015, issued by the ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 6 CWPOA No.7648 of 2019 Finance Department, was not in existence at that time. Therefore, the defence taken on the basis of said communication is not available to the respondents. So far as instructions dated 11.07.1995 are concerned, the .
same were to be complied with by concerned Officer/Department before engaging the petitioner and other similarly situated persons.
10 The petitioners and others belong to lowest strata of Society appointed in the lowest rank in the public service. It was not expected by them that State/Department was engaging them dehors the procedure or in contravention of directions/instructions issued by the concerned authority. Moreover, for extracting the work, Department has no hesitation to continue the engagement of petitioner but at the moment, when such appointees/engaged persons claim service benefits, the State/Department suddenly becomes law abiding employer and starts referring various instructions, directions as well as pronouncements of the Court to deny the service benefits acquired and accrued in favour of such appointees. Such exploitive behaviour on the part of State is not acceptable being a model employer as State is protector of rights of its citizens.
11 In Asha Devi's case (CWPOA No. 1833 of 2020), referred supra, the Coordinate Bench on the basis of record has observed as under:-
"3. Though, respondents were unable to dispute that petitioner from the date of her initial regularly working at engagement has been Processing-cum-Training Centre,Nurpur, District Kangra, H.P., but since it came to be specifically disputed on behalf of the respondents that petitioner was not appointed on daily wage basis and she ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 7 CWPOA No.7648 of 2019 was paid on hourly basis, this Court vide order dated 20.10.2021, directed learned Additional Advocate General to make available complete service record of the petitioner, .
especially Mandays Chart Annexures A-1 and A-2. Pursuant to aforesaid order, respondent-Department has made available the record, perusal whereof clearly reveals that the documents annexed as Annexure A-1 and A-2 are the documents of the Department, wherein petitioner has been nowhere shown to be working on hourly basis, rather in both the documents factum with regard to petitioner's having worked for particular days stands duly recorded. During scrutiny of the record made available to this Court, this Court was able to lay its hand to documents available at page No.8 of the record file No. Udyan F.T.(N)4-7/2014-II, perusal whereof reveals that the Department had maintained seniority list-cum-yearwise days of engagement of the daily wagers/seasonal workings pertaining to PTC Dehra/Kinoo/Nadaun/Nurpur/Tauni Devi under fruit canning unit Nagrota Bagwan, which is reproduced as under:-
Sr. Name & Address Date of YEARWISE NUMBER OF THE DAYS No Engagement 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010(up to March) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 Sh. Devinder Kumar son of Sh. 21.9.2020 100 285 182 140 248 242 204 273 269 287 70 Ganpat Ram, V.Tilu . P.O. Bela, Nadaun 2 Sh. Parmjeet Singh son of Sh. 24.10.2000 66 264 245 210 208 207 227 296 264 298 76 Bajir Chand, V. Amarpuri, .P.O. Dehra 3 Sh. Asha Devi w/o Mangat Ram, 12.3.2001 - 289 313 316 293 272 286 269 301 317 88 VPO Duga, Bazar Nurpur.
4 Sh. Vikram Singh s/o Sh. 30.3.2001 - 2 103 174 164 121 242 278 296 297 84 Balbhadar Singh V. Haar PO Nurpur.
5 Nirmla Devi W/o Sh. Om Prakash 1.6.2001 - 217 353 249 311 269 321 300 286 295 76 VPO Kinoo 6 Smt. Gurpiary w/o Sh. Ramesh 19.62001 - 140 295 291 250 275 299 338 348 329 82 Chand V. Muhee, PO Kot.
7 Sh. Chandar Sekhar S/o Sh. Gian 21.2.2002 - - 180 210 208 210 226 310 276 300 76 Chand VPO Dohang, Dehrian, Dehra 8 Sh. Naresh Kumar son of Sh. 6.11.2004 - - - - 23 9 - 109 182 185 75 Lekh Raj, VPO Kinoo 9 Sh. Sher Singh S/o Sh. Pratap 9.4.2007 - - - - - - - 140 262 287 70 Chand VPO Bela Nadaun 10 Sh. Om Prakash s/o Sh. Palu Ram 16.5.2007 - - - - - - - 95 178 179 73 VPO Kinoo
4. In the aforesaid documents, which are part of the record of the Government, petitioner, Smt. Asha Devi has ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 8 CWPOA No.7648 of 2019 been shown to be working as daily wager w.e.f.12.3.2001 and she has been shown to have worked for more than 240 days in the years, 2001, 2002, 2003, 2004, 2005, 2006, .
2007,2008 and 2009. Though, in the aforesaid document alteration with pen has been made to make it appear that this seniority list-cum-yearwise days of engagement of daily wagers also pertains to seasonal workers, but learned Additional Advocate General was unable to dispute that all the persons named in this list were engaged on daily wage basis and if it is not then how the name of petitioner Smt. Asha Devi came to be reflected in the afore list, if she was given appointment on hourly basis. Besides above, Page No.34 of the record, as detailed hereinabove, reveals that in the years 2001 to 2015 petitioner worked for more than 240 days in a calendar year. In this document, it has been nowhere mentioned that petitioner herein was appointed on hourly basis and as such, there appears to be merit in the claim of the petitioner that she had been working regularly on daily wages since her initial appointment in the year, 2001. At this stage, learned Additional Advocate General made available some documents to demonstrate that petitioner herein had been working on hourly basis not on daily wage basis,however, having carefully perused the aforesaid documents, which otherwise appear to be a bill raised by Incharge of Fruit Processing-cum-Training Centre, Nurpur with regard to payment of the workers, reveals that petitioner as well as other similarly situate persons had been working for 7-8 hours every day, meaning thereby they like other daily wagers were also performing duties for the whole day and not on hourly basis. Needless to say, Government servant is obliged to work for 7 to 8 hours i.e.10 to 5 PM in the government offices of State of Himachal Pradesh. Though, having carefully scrutinized the entire record, as has been ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 9 CWPOA No.7648 of 2019 taken note hereinabove, this Court is fully convinced that petitioner had been rendering her services from the date of her initial appointment till date on daily wage basis, but still .
if aforesaid documents i.e. bills placed on record are taken into consideration even then petitioner cannot be said to be working on hourly basis, especially when respondents have not been able to refute/dispute that petitioner had been working for 7 to 8 hours per day. "
12 In Kusuma Devi's case (CWPOA No. 7087 of 2019) related to a similarly situated appointee in Himachal Pradesh Fruit Processing Centre Dhaulakuan, District Sirmaur has observed as under:-
"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.......
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 ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 10 CWPOA No.7648 of 2019 18.03.2016, inter alia, is on the 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 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 ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 11 CWPOA No.7648 of 2019 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 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 ::: Downloaded on - 24/04/2024 20:32:19 :::CIS 12 CWPOA No.7648 of 2019 petitioner, so that justice can be done to her. Petition stands disposed of in above terms, so also pending miscellaneous application, if any."
.
13 It is undisputed that petitioner, though with strength of interim order, like Kusuma Devi's case is working till date and performing his duties as work is available.
14 In the aforesaid facts and circumstances, petitioner cannot be singled out to deprive the service benefits including regularization after completion of 8 years of his service after his initial appointment i.e. after completion of 240 days in calender year in the year 2001.
15 Accordingly, respondents are directed to extend the benefits of regularization to petitioner by deeming his first year to be 2001 and by condoning the shortfall of few days in completion of requisite number of days in the years 2003 to 2006 and thus, considering completion of 8 years of his service with 240 days in calender year w.e.f. 2001 or upon completion of such number of years as was required under the Policy existing at the relevant point of time. The petitioner shall be entitled for regularization with all consequential benefits. However, actual monetary benefits shall be payable from the date three years prior to filing petition i.e. w.e.f. June, 2013. Whereas benefits beyond June, 2013 will be on notional basis only. Taking into consideration the peculiar facts and circumstances of present case, it is also directed that if necessary, supernumerary post for the purpose of regularization of petitioner be created by respondents/State/Department as a measure personal to the petitioner for doing complete justice.
::: Downloaded on - 24/04/2024 20:32:19 :::CIS 13 CWPOA No.7648 of 2019Petition is allowed in aforesaid terms. All pending miscellaneous application(s), if any, also stand disposed of accordingly.
.
(Vivek Singh Thakur),
24th April, 2024 Judge.
(ms)
r to
::: Downloaded on - 24/04/2024 20:32:19 :::CIS