Himachal Pradesh High Court
Nisha Sharma vs State Of Himachal Pradesh & Others on 18 August, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.4956 of 2019 Date of Decision: 18.08.2023 .
_______________________________________________________ Nisha Sharma .......Petitioner Versus State of Himachal Pradesh & others ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of Whether approved for reporting? 1 For the Petitioners: Mr. Sunil Mohan Goel, Advocate.
For the Respondents: rt Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals with Mr. Mr. Ravi Chauhan, Deputy Advocate General, for respondent No.1.
Mr. C.N.Singh, Advocate for respondent No.2.
___________________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition, petitioner has prayed for the following relief(s):
"(i) This Hon'ble Court may be pleased issue writ of certiorari quashing the impugned letter/communication dated 23.10.2010 (Annexure P-1) issued by the respondent No.2 Authority.
(ii) This Hon'ble Court may be pleaded issue writ of mandamus directing the respondents not to implement communication dated 23.10.2010 (Annexure P-1) and 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 23/08/2023 20:32:32 :::CIS 2
allow the petitioner to perform duties of Clerk the work the petitioner is doing.
(iii) This Hon'ble Court may be pleased to writ of mandamus directing the respondents to regularize the services of .
the petitioners as Clerk and further to pay the petitioner the minimum daily wages of Clerk from the date of the engagement of the petitioner i.e. 1.5.2000 (though mentioned as 14.9.2000 in the seniority list and affidavit) with interest at the rate of 18% per annum.
2. Precisely, the grouse of the petitioner as has been of highlighted in the petition and further canvassed by learned counsel for the petitioner, is that though she was initially appointed as daily rt wage beldar but from day one, has been rendering services of Clerk and as such, ought to have been regularized as Clerk not beldar.
Admittedly, on 1.5.2000 petitioner was engaged as daily wage beldar but was discharging duty of Clerk, as is evident from the communication dated 30.5.2006, issued by CEO-cum- Secretary HIMUDA to the petitioner (Annexure P-2). It is apparent from the aforesaid communication that CEO-cum-Secretary having taken note of the fact that persons appointed on daily wage basis were being made to work as Clerk, called for information from the field units, so that appropriate orders for regularization could be passed. Pursuant to aforesaid communication, petitioner herein submitted affidavit, stating therein that she joined H.P. Housing Board prior to the merger of Shimla Urban Development Authority and from day one, has been ::: Downloaded on - 23/08/2023 20:32:32 :::CIS 3 working as Clerk with the said authority(Annexure P-3). Vide communication dated 2.01.2007 (Annexure P-4) CEO-cum-Secretary, HIMUDA, Himachal Pradesh apprised Secretary(Housing) to the .
Government of Himachal Pradesh that there are 59 posts of Clerk in the pay scale of Rs. 3120-5160 in the authority against which 35 incumbents are on regular basis and 4 on daily waged basis and one on contract basis. While apprising authority concerned that 19 posts of of Clerks are lying vacant in the authority, CEO-cum-Secretary, HIMUDA specifically informed Secretary (Housing) to the Government rt of Himachal Pradesh that as per information received from field offices including Head office, some of the persons appointed as daily waged beldar were actually made to work against the post of Clerk from the date of their joining in the Department. Alongwith aforesaid communication one list also came to be furnished of such employees, who though were appointed as daily wage beldar but were made to work as Clerk. Name of the petitioner figures at Sr. No.27. Though, it is quite apparent from the aforesaid communication as well as affidavit furnished by the petitioner in terms of communication dated 30.5.2006 that petitioner had been working as Clerk from the date of her appointment, but since she was not regularized against the post in question, she was compelled to approach this Court in the instant proceedings, praying therein for reliefs, as have been reproduced ::: Downloaded on - 23/08/2023 20:32:32 :::CIS 4 hereiabove. It is pertinent to take note of the fact that during the pendency of the present petition, services of the petitioner were regularized after her having completed 8 years service, but not .
against the post of clerk but as a beldar.
3. Respondent No.2 in reply while admitting factum with regard to engagement of the petitioner as daily wage beldar on of muster roll basis on 1.5.2000 has specifically denied that work of Clerk was being extracted from the petitioner from the date of her joining the department. However, aforesaid assertion made in the rt reply is totally contrary to the communications dated 30.5.2006 issued by CEO-cum-Secretary HIMUDA. It has been further stated in the reply that in the year 2007, proposal was sent vide Annexure P-4 to respondent No.1 to allow the rate and designation of clerk to the petitioner and other similar situate incumbents as per the list attached with the said letter, however such proposal was rejected by respondent No.1 vide letter dated 22.1.2007. It has been further stated in the reply that that as per condition No.11 of H.P. Housing and Urban Development Authority Act, 2004 though authority can create post, if necessary, for the efficient performance of its function but with the prior approval of the State Government but since in the case at hand, no prior approval was given by the Government for creation of post, steps for regularizing of the petitioner against the ::: Downloaded on - 23/08/2023 20:32:32 :::CIS 5 post of clerk could not be taken. This Court finds from the record that similar situate persons, who though were appointed as daily wage beldar, but were made to work as Clerk, had approached this Court .
by way of various writ petitions, praying therein to issue direction to the respondent to regularize them against the post of Clerk. In case titled Santosh Chauhan vs. Himachal Pradesh Housing and UDA and others, i.e. CWP (T) No.628 of 2008, decided on 10.05.2010 of (Annexure P-6), Co-ordinate Bench of this Court having taken note of the fact that petitioner was made to work against the post of Clerk, rt directed respondents to consider the case of the petitioner for regularization against the post of Clerk/Supervisor immediately after completion of eight years. Aforesaid judgment passed by Co-ordinate Bench of this Court stands implemented.
4. Co-ordinate Bench of this Court in another judgment dated 21.5.2010, passed in case tilted Salochana Verma vs. Himuda Housing and Urban Development Authority, again directed respondents to regularize the petitioner against the post of Clerk (Annexure PR-1). Order dated 7.7.2010 passed by CEO-cum-
Secretary, HIMUDA clearly reveals that aforesaid judgment dated 21.5.2010 passed by Co-ordinate Bench of this Court was implemented, as a consequence of which, person Smt. Salochana Verma, who is similar situate to petitioner came to be regularized ::: Downloaded on - 23/08/2023 20:32:32 :::CIS 6 against the post of clerk not as daily wage beldar. Since it is not in dispute that petitioner is similar situate to above named Smt. Salochana Verma and Santosh Chauhan, case of the petitioner is .
also required to be considered and decided for regularization against the post of clerk from due date. In another judgment dated 9th July, 2021, passed by Co-ordinate Bench of this Court in CWPOA No.4957 of 2019, person namely Rajesh Kumar, who was similar situate to of petitioner was ordered to be regularized as Clerk. Learned counsel representing the respondent-HIMUDA has been unable to dispute that rt aforesaid person pursuant to the directions contained in the judgment dated 9th July, 2021 stands regularized against the post of Clerk.
5. At this stage, Mr. C.N.Singh, learned counsel for the respondent-HIMUDA, vehemently argued that once petitioner herself has accepted regularization against the post of daily wage beldar, she is estopped from claiming regularization against the post of Clerk. To fortify aforesaid submission, he placed reliance upon the judgment dated 25.7.2019 passed by Division Bench of this Court in CWP No.880 of 2018, titled as Himachal Pradesh General Industries Corporation Limited vs. Jagdish Kumar, however this Court finds that Co-ordinate Bench of this Court while passing order dated 9th July, 2021 in case titled Rajesh Kumar and others vs. Himachal Pradesh Urban Development Authority and others has already ::: Downloaded on - 23/08/2023 20:32:32 :::CIS 7 considered and dealt with aforesaid judgment. Otherwise also, careful perusal of aforesaid judgment nowhere suggests application of the same in the present case because in that case petitioner was initially .
engaged on daily wage basis in the year 1992, but was designated as Blastman-cum-Supervisor, rather a Class-III post in the year 2004.
The Principal reason prevailing upon the Division Bench of this Court to discard the re-designation of the workman therein, as Blastman-
of cum- Supervisor, rather a Class-III, post became comprised in the fact that re-designated post, is a promotional post and that the workman rt therein was performing the duties of Driller on a daily wage basis, hence a Class-IV post. However, in the case at hand the facts are totally different. In the case at hand petitioner though was given appointment as daily wage beldar but from day one was made to work against the post of clerk, as is evident form Annexures P-2 to P-4.
Since respondent-HIMUDA was itself aware of the fact that from day one petitioner is discharging the duty of Clerk alongwith other persons, it itself initiated the proposal to Government seeking therein permission to regularize such person against the post of clerk, but for no justifiable reasons, proposal made by the respondent came to be rejected. Leaving everything aside, this Court finds that similar situate persons as have been taken note hereinabove, already stand regularized against the post of Clerk and as such, relief as sought for ::: Downloaded on - 23/08/2023 20:32:32 :::CIS 8 by the petitioner, if not granted, would amount to discrimination, which is impermissible in law.
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6. Consequently, in view of the above, the present petition is allowed and respondents are directed to regularize the services of the petitioner against the post of Clerk from due date, as has been done in the case of the persons namely, Santosh Chauhan, of Salochana Verma and Rajesh Kumar alongwith consequential benefits. Pending applications, if any, also stand disposed of.
rt (Sandeep Sharma),
Judge
August 18, 2023
(shankar)
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