Himachal Pradesh High Court
State Of Himachal Pradesh & Another vs Rama Verma & Another on 4 December, 2023
Author: Sandeep Sharma
Bench: Vivek Singh Thakur, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 227 of 2023 Decided on: 4.12.2023 State of Himachal Pradesh & another .... Appellants .
Versus
Rama Verma & another .... Respondents
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge The Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting1 :
of For the Appellants: Mr. Baldev Singh Negi, Additional Advocate General.
For Respondents: Mr. Karan Singh Parmar, Advocate.
Sandeep Sharma, J rt Instant Letters Patent Appeal, having been filed by the appellants, lays challenge to judgment dated 11.05.2023 passed by learned Single Judge in CWPOA No. 5482 of 2019, titled as Rama Verma and another vs. State of Himachal Pradesh and another alongwith connected matters, whereby direction came to be issued to the appellants-State to regularize the service of the respondents-
petitioners namely, Rama Verma and Sheetal Gupta as Data Entry Operators w.e.f. 12.10.2017 respectively, i.e. the date of creation of the said posts with all consequential benefits.
2. Before taking note of pleadings adduced on record by the respective parties, it is pertinent to take note of the fact that though vide impugned judgment passed by learned Single Judge , two writ petitions bearing CWPOA No. 5482 of 2019 and 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 07/12/2023 20:31:43 :::CIS 2CWP No.1651 of 2021, having been filed by respondents-petitioners Rama Verma and another and Rajesh Kumar Kimta, respectively came to be disposed of, but in the instant appeal, challenge has .
been laid to judgment passed in CWPOA No.5482 of 2019 in the case of the petitioners namely, Rama Verma and Sheetal Gupta, whereby direction has been issued to regularize services of aforesaid persons as Data Entry Operators w.e.f. the date of of creation of the said posts. Through, instant appeal no challenge has been laid to findings and directions returned/ issued by learned Single Judge in CWP No.1651 of 2021, titled Rajesh Kumar Kimta rt vs. State of Himachal Pradesh and others and as such, there appears to be no occasion for this Court to refer the facts of Rajesh Kumar Kimta's case and to ascertain the correctness and legality of findings returned in that case.
3. For having bird's eye view, facts of CWPOA No.5482 of 2019, which may be relevant for adjudication of the instant appeal, are that petitioners namely, Rama Verma and Sheetal Gupta were initially appointed as Data Entry Operators under MIS Project and they continued to work in this capacity w.e.f.13.06.2006 to 12.09.2007. Ms. Rama Verma was working as Data Entry Operator in IPH Department, US Club, Shimla, whereas Sheetal Verma was working as such in the IPH Division, Mandi, District Mandi, H.P. In the month of September, 2007, Engineer-
in-Chief, Irrigation & Public Health Department conveyed its ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 3 approval to engage three Data Entry Operators initially for a period of four months, as a result thereof, petitioners, named hereinabove, were thereafter appointed as Data Entry Operators for .
four months on contract basis, but pleadings clearly reveal that contracts of above named persons were renewed from time to time till 31.12.2010. With effect from the month of January, 2011, services of the petitioners were utilized by the State Water of and Sanitation Mission of the Department of IPH. After completion of six years of service as on 31.03.2014, petitioners namely, Rama Verma and Sheetal Gupta made a request rt to the authorities for regularization of their service. Besides aforesaid request, they also apprised the competent authority that they are eligible to be appointed as Clerks against the posts of Clerks lying vacant in the Department. Petitioners also submitted that they can be considered for regularization against the posts of Data Entry Operators as they fulfill the eligibility criteria prescribed in the instructions issued by the Government for regularization of the services of the contract appointees against the said post. However, fact remains that neither petitioners were given annual 3% increase in the pay scale permissible to the contract appointees nor their services were regularized and as such, they were compelled to approach this Court by way of CWPOA No.5482 of 2019, praying therein for following reliefs:-
::: Downloaded on - 07/12/2023 20:31:43 :::CIS 4"i) That respondents may kindly be directed to regularize the services of the applicants from the date when they completed six years of service with all consequential benefits. The respondents may further be directed to pay the applicants the pay and .
allowances of Date Entry Operator which is a Class-III post alongwith all consequential benefits.
ii) The respondents may be directed to pay the salary to the applicants as Data Entry Operators at par with the regular appointees with all consequential benefits.
iii) That the respondents may be directed to pay 3% of increase in the salary of the applicants with effect from 1.1.2006 or from any other date this Hon'ble Tribunal may deem proper with all consequential rt benefits."
4. Pursuant to the notices issued in the instant proceedings, appellants-respondents filed reply, fairly admitting therein factum with regard to engagement of the petitioners as Data Entry Operators initially under MIS Project and thereafter on contract basis. However, they sought to refute the claim of the respondents-petitioners on the ground that they were engaged on contract basis by one M/s Bretoon Woods Finlease Limited for NIC Shimla and their services were placed as Data Entry Operators under MIS Project from 13.03.2006 to 12.09.2007.
Appellants- respondents also stated in the reply that since work qua which petitioners were engaged was not complete, permission was sought from the competent authority to grant extension for continuing the services of the petitioners. Appellants-respondents fairly admitted in the reply that Department continued to give ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 5 approvals for the engagement of the petitioners, but without the approval of the Government.
5. While refuting the claim of the petitioners-respondents that .
certain Data Entry Operators in IPH Department were regularized, appellants-respondents stated that one Prakash Chand, who was initially appointed as Data Entry Operator on daily wage basis was regularized after completion of ten years of of service, but such benefit cannot be extended to the petitioners-
respondents being not similarly situate to him. While disputing the claim put forth by the rt appellants-respondents in their reply, petitioners-respondents placed on record few relevant documents alongwith the rejoinder as Annexure PR-1 i.e. communication addressed by Director (WSSO) Dhalli to the Engineer--in--
Chief of Irrigation and Public Health Department, dated 17.10.2014, stating therein that petitioners were initially engaged on contract basis by the IPH Department and thereafter, on the approval of the Principal Secretary, IPH to the Government of H.P., the staff was put under the administrative financial control of WSSO w.e.f. 01.01.2011 and the office had engaged persons on contract initially for one year, but same was extended from time to time. By placing on record aforesaid communication, petitioners also established on record that decision was taken to send a proposal to the Government for creation of one post of Computer Programmer and two posts of ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 6 Data Entry Operators, which prayer was ultimately acceded to by the Department by creating one post of Assistant Programmer and two posts of Data Entry Operators in the IPH Department vide .
Notification issued by Principal Secretary, IPH, dated 12.10.2017.
6. Learned Single Judge having taken note of aforesaid pleadings adduced on record, allowed the claim of the petitioners-
of respondents vide impugned judgment and directed the appellants-
respondents to regularize the service of the petitioners Rama Verma and Sheetal Gupta as Data Entry Operators w.e.f date of creation rt of said posts i.e. 12.10.2017 with all consequential benefits. In the aforesaid background, appellant-Department has approached this Court in the instant proceedings, praying therein to set aside aforesaid impugned judgment.
7. Precisely, the grouse of the appellant-Department as has been highlighted in the grounds of appeal and further canvassed by Mr. Baldev Singh Negi, learned Additional Advocate General, is that learned Single Judge erred in not appreciating the facts that at no point of time initial appointment against the posts of Data Entry Operators on daily wage basis was given by the Department, rather services of the petitioners were hired/engaged through Private Agency and as such, services of the petitioners could not have been equated with the Data Entry Operators given appointment by the Department on daily wage basis. Mr. Negi, ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 7 further submitted that there is nothing on record to suggest that services of the petitioners were placed as Data Entry Operators under MIS project w.e.f. 13.3.2006 to 12.09.2007 and at no point of .
time, Government gave approval for the engagement of petitioners, rather such approval was issued by the Department without there being any authority. Mr. Negi, further argued that learned Single Judge wrongly interpreted communication dated 17.10.2014, of issued by Director (WSSO) Dhalli to the Engineer¬-in-¬Chief of Irrigation and Public Health Department because in that communication it never came to be accepted on behalf of the rt Department that petitioners were initially engaged on contract basis by the IPH Department and thereafter, on the approval of the Principal Secretary, IPH to the Government of H.P., the staff was put under the administrative financial control of WSSO w.e.f.
01.01.2011. Mr. Negi, submitted that since initial appointment of the petitioners is dehors the rules and posts of Data Entry Operators could only be filled up by direct recruitment, learned Single Judge ought not to have issued direction for their regularization.
8. To the contrary, Sh. Karan Singh Parmar, Advocate supported the impugned judgment. He submitted that bare perusal of pleadings adduced on record, especially reply filed by the appellants-respondents clearly reveals that respondents-petitioners were initially engaged on contract basis by the IPH Department and their administrative and financial control of WSSO w.e.f. 01.01.2011 ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 8 was actually with the Department of IPH. He submitted that though initially petitioners were engaged for four months, but their contract was renewed from time to time. He submitted that Department .
having taken note of requirement of the petitioners to be appointed against the post of Data Entry Operators, requested for creation of posts to the Government, which was accepted by Principal Secretary, IPH vide communication dated 12.10.2017, whereby he of ordered creation of one post of Assistant Programmer and two posts of Data Entry Operators in the IPH Department.
9. Having heard learned counsel for the parties and rt perused material available on record, this Court finds that though petitioners were initially appointed as Data Entry Operators under MIS Project, but they continued to work in IPH Department, US Club Shimla and IPH Division Mandi, respectively. In the month of September, 2007, Department sought approval for engaging the services of the petitioners from respondent No.1, who while conveying its approval, permitted Department to engage the services of three Data Entry Operators initially for a period of four months. Though, pursuant to aforesaid approval, petitioners were appointed as Data Entry Operators for four months on contract basis, but their contract subsequently came to be renewed from time to time till 31.12.2010. With effect from January, 2011, services of the petitioners were utilized by the State Water and Sanitation Mission of the Department of IPH. Even if it is ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 9 presumed that initial service of the petitioners were engaged as Data Entry Operators was under MIS Project that too by a Private Agency, it was only for the period starting from 13.03.2006 to .
12.09.2007, whereafter admittedly petitioners were allowed to work on contract basis on the approval given by the competent authority.
With effect from September, 2007 and till 31.12.2010, petitioners had been working as Data Entry Operators in the Department of IPH of in Shimla and Mandi, respectively, may be under MIS Project, but admittedly after January, 2011 their services were utilized by the State Water and Sanitation Mission, which is also one of the rt Department of IPH. Once petitioners regularly worked on contract basis w.e.f. September, 2007 till 31.3.2014 they rightly requested authorities for regularization of their services in terms of the policy of regularization framed by the Government of Himachal Pradesh from time to time. It is not in dispute that at that relevant time petitioners were having requisite qualification to be posted against the post of Data Entry operators. It has been nowhere disputed by the respondents that petitioners do not possess eligibility criteria prescribed in the instructions issued by the Government for regularization of the service of contract appointees against the said posts. Moreover, it is none of the case of the appellant Department that there is difference in duties being performed by the petitioners as compared to those being performed by the regular Data Entry Operators. Leaving everything aside, this Court finds ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 10 that their case for regularization was taken up by the Department in the State Level Scheme Sanctioning Committee Meeting held on12.05.2011 and a proposal was mooted for creation of the posts .
of Computer Programmers (1) and Data Entry Operators (2).
10. Plea setup by the appellants that the project in which the petitioners were developed was a Government of India aided of Project, may not be of much consequences, especially when it stands clearly established on record that w.e.f. 13.3.2006 to 12.9.2007 petitioners were made to work as Data Entry Operators rt under MIS project, but thereafter w.e.f. the month September, 2007 approval was given by the Competent Authority to engage the services of the petitioners as Data Entry Operators for a period of four months. With effect from September, 2007 till 31.3.2014 petitioners kept on working in the different offices under the administrative and financial control of IPH. Department of IPH having taken note of necessity and requirement of the petitioners to be employed against the post of daily wager, itself made proposal for creation of posts, which proposal was duly accepted and sanction was granted to fill up those posts in accordance with Rules.
Since it is not in dispute that posts of Data Entry Operators stand created in the Department of IPH in terms of Notification issued by Principal Secretary, IPH dated 12.10.2017 and 21.1.2019, coupled with the fact that petitioners fulfill eligibility criteria for being ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 11 appointed the post of Data Entry Operator, no illegality can be said to have been committed by the learned Single Judge while ordering regularization of the petitioners from the due date. Otherwise also, .
format for manpower working with IPH Department on contractual posts placed on record clearly reveals that posts of Data Entry Operators are available and petitioners being fully eligible can be regularized against the posts, especially when they of have been working against such posts uninterruptedly on contract basis for more than six years. Since factum with regard to petitioner's having worked against the post in question for more than rt six years is not in dispute, coupled with the fact that permanent posts of Data Entry Operators are available, this Court finds it difficult to agree with Mr. Baldev Singh Negi, learned Additional Advocate General that petitioners are not entitled for regularization, rather denial of regularization, if any, would amount to clear cut discrimination vis-a- vis category of those Data Entry Operators, who were allegedly appointed by the Department directly on daily wage basis i.e. one Prakash Chand. Since for the reason stated hereinabove, this Court is convinced and satisfied that w.e.f.
September, 2007 petitioners appointment against the post of Data Entry Operators on contract basis was on the approval of the competent authority and on the request of the Department three posts of Data Entry Operators were created, action of the appellant-
Department in denying regularization to the petitioners against the ::: Downloaded on - 07/12/2023 20:31:43 :::CIS 12 sanctioned posts of Data Entry Operators, is wholly unjustified and if permitted to sustain would cause great prejudice to the petitioners, who otherwise being similar situate to person namely, Prakash .
Chand have been rightly ordered to be regularized from due date.
11. Consequently, in view of the above, this Court finds no illegality and infirmity in the impugned judgment passed by learned Single Judge and as such, same is upheld. The present appeal fails of and is accordingly dismissed alongwith pending applications, if any.
(Vivek Singh Thakur)
rt Judge
(Sandeep Sharma)
December 04, 2023 Judge
(shankar)
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