Himachal Pradesh High Court
Between vs State Of Himachal Pradesh on 27 August, 2021
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 27th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITON No. 5021 of 2020
Between:
SAROJ KUMARI WD/O SH.
LACHHO RAM, R/O VILLAGE
SULLAHA, TEHSIL PALAMPUR,
DISTRICT KANGRA, H.P.
....PETITIONER
(BY SH. ANUP RATTAN, ADVOCATE)
AND
1. STATE OF H.P., THROUGH
SECRETARY (AYURVEDA), TO
THE GOVERNMENT OF H.P,
SHIMLA-02.
2. DIRECTOR AYURVEDA, H.P.
KASUMPTI, SHIMLA.
....RESPONDENT
BY. SH. DESH RAJ THAKUKR,
ADDITIONAL ADVOCATE GENERAL
WITH MR. NARENDER THAKUR,
DEPUTY ADVOCATE GENERAL.
Whether approved for reporting? Yes.
This petition coming on for hearing this day, the Court passed the following:
ORDER
Being aggrieved and dissatisfied with the order dated
10.1.2020 (Annexure P-9), passed by Director Ayurveda, Himachal
Pradesh in purported compliance of order dated 30.12.2019
(Annexure P-11), passed by this Court in COPC(T) No.101 of 2019,
whereby this Court disposed of the aforesaid contempt petition on the
basis of the statement made by learned Additional Advocate General on
the instructions of the Law Officer present in Court, that fresh
.
consideration order in terms of order dated 19.11.2015 read with order
dated 13.12.2012, shall be passed positively within a period of ten
days, petitioner has approached this Court in the instant proceedings
filed under Article 226 of the Constitution of India, praying therein
following reliefs:-
(i) That the impugned order dated 10.1.2020
may kindly be quashed and set aside
being illegal and erroneous.
(ii) That respondents be directed to
r regularize the services of the husband of
the petitioner as per Recruitment and
Promotion Rules as notified on
31.12.1998 or as per the Rules prevailing
on completion of 10 years of service as
Part Time Class-IV employee having 240
days in each calendar year by strictly and
correctly complying with the judgment
passed in CWP No.2031/2011 and TA
No.1356/2015.
(iii) That respondent be directed to give all
pecuniary benefits as well as service
benefits and consequential benefits of
regularization of services of the
petitioner's husband when the vacancy is
available with the respondent
Department.
2. Precisely, the facts of the case as emerge from the record
are that deceased Lachho Ram i.e. husband of the petitioner herein
was appointed as Class-IV part time worker on 1.8.1969 and in this
capacity, he served the Department till 10.8.2005 when he
unfortunately expired. Respondents regularized the services of the
petitioner on 19.10.2005, as is evident from Annexure P-3, whereas the
services of the petitioner were required to be regularized on 01.01.1999
.
in terms of Recruitment and Promotion Rules, as such, he filed writ
petition before this Court bearing CWP No.2031 of 2011, which was
allowed with the direction to the respondents to re-consider the case of
the petitioner's husband in terms of Clause-11of the Recruitment and
Promotion Rules counting his services as part time worker and then
consider his case for regularization on the availability of vacancy on the
date on which petitioner's husband Lachho
r Ram has completed 10
years service with 240 days in each calendar year. Apart from above,
Co-ordinate Bench of this Court vide aforesaid judgment dated 13th
December, 2021 also ordered that merely because the decision was
taken in October, 2005 would not mean that it deprive the petitioner's
husband from such regularization. It is the availability of the posts to
be filled in, in accordance with the Recruitment and Promotion Rules.
Co-ordinate Bench of this Court also held that since Lachho Ram,
husband of the petitioner has died, his wife in such eventuality would
be entitled to the consequential monetary benefits, if her husband is
found eligible. Despite there being aforesaid positive directions to do
the needful, respondents after having considered the case of the
petitioner rejected the claim of the petitioner vide order dated
24.8.2013 (Annexure P-5).In the aforesaid order, respondents observed
that husband of the petitioner was illiterate and did not possess the
requisite essential qualification and as such, he did not fulfill the
provision of the Recruitment and Promotion Rules, which disqualifies
.
his entitlement for regularization even though he has put in more than
10 years services. Besides above, respondents also observed in the
aforesaid order that no post of Class-IV workers were filled up under
Recruitment and Promotion Rules before 2005 as no daily waged
workers were eligible for regularization at that time. In the aforesaid
order, respondents claimed that services of 170 Part Time Worker
including husband of the petitioner were regularized on 19.10.2005
with the prior consultation/approval of the Advisory Departments as
well as Cabinet by relaxing the essential educational qualification.
3. Being aggrieved and dissatisfied with the aforesaid order
dated 24.8.2013, passed by the respondents, petitioner once again
approached this Court by way of CWP No.5415 of 2014, however such
petition was transferred to erstwhile H.P. Administrative Tribunal on its
establishment and was registered as TA No.1356 of 2015. Learned
Tribunal vide judgment dated 19.11.2015 (Annexure P-6), allowed the
petition and directed the respondents to consider the case of the
deceased husband of the petitioner (Lachho Ram) for regularization
against the available vacancies with all consequential benefits. Since,
the respondents did not comply the judgment, petitioner filed contempt
petition bearing COPC No.95 of 2016 before the learned Tribunal
below, however respondent-State again passed consideration order
(Annexure P-7), rejecting the case of the petitioner on the same and
similar ground as was raised prior to passing of judgment dated
.
19.11.2015 by learned Tribunal in Transfer Application No.1356 of
2015, titled as Saroj Kumari versus State of Himachal Pradesh
and another.
4. Record reveals that respondent-State also filed writ petition
bearing CWP No. 263 of 2017-G against the judgment dated
19.11.2015, passed by learned Tribunal below in Transfer Application
No.1356 of 2015, but same was dismissed on the basis of the
statement made by learned Deputy Advocate General that impugned
order already stands considered (Annexure P-8). In compliance to
order dated 30.12.2019, passed by this Court in COPC(T) No.101 of
2019, respondent-State again passed order dated 30.12.2019,
rejecting the case of the petitioner on the ground that there was no
provision for regularization of services of part time employees in the
Recruitment and Promotion Rules, however on the directions/ orders of
learned Tribunal passed on 01.5.1997 in O.A No.875 of 1991, following
provisions for the recruitment/appointment of the Peons and Sweepers
were made in the R&P Rules for part timers for the first time and
notified on dated 31.12.1998 which stipulated as under:-
"11.) 50% by appointment from amongst the wholly paid
daily waged Class-IV workers of the department who
passes at least 10 years service having 240 days in each
calendar year, failing which by appointment from
amongst the departmental working part time workers who
also possess at least 10 years service having 240 days in
each calendar years as such, and fulfill the qualification
as per Column 6 R &P Rules."
5. In the aforesaid order respondents claimed that no posts of
.
Class-IV could be filled up under aforesaid R &P Rules before 2005 on
account of the ban imposed by the Government on filling up of vacant
posts, which is evident from the copy of instructions issued by Finance
Department vide letter No.Fin.1-C(14)-1/83 dated 8th July, 1998. In the
aforesaid order respondent also claimed that 170 Part Time workers
alongwith 93 Part Time Sweepers were regularized on 19.10.2005,
which also included late Sh. Lachho Ram after getting the approval
from the Government by according one time relaxation in upper age
limit to those part time workers who had crossed 45 years of age as
well as in educational qualification for those who did not fulfill the
same as per the R&P Rules. In the aforesaid background, petitioner has
approached this Court in the instant proceedings, praying therein
reliefs, as have been reproduced hereinabove.
6. Having heard learned counsel representing the parties and
perused the material available on record, this Court finds that there is
no dispute that husband of the petitioner was appointed as Class-IV
part time worker on 1.8.1969 and he after having served the
Department for more than 35 years unfortunately breathed his last on
10.08.2005. It is also not in dispute that prior to filing of the petition at
hand, petitioner, who happens to be wife of late Sh. Lachho Ram had
approached this Court by way of CWP No.2031 of 2011, wherein
positive direction was issued to the respondents to consider the case of
the petitioner's husband in terms of Clause-11 of the Recruitment and
.
Promotion Rules counting his services as part time worker and then
consider his case for regularization on the availability of vacancy on the
date on which petitioner's husband Lachho Ram completed 10 years
service with 240 days in each calendar year, but it appears that
respondents ignoring aforesaid positive direction issued by Co-ordinate
Bench of this court vide judgment dated 13th December, 2012,
proceeded to reject the case of the petitioner on the ground that
husband of the petitioner was illiterate and did not possess the
requisite essential qualification and as such, he is not entitled for
regularization as per provision contained under Recruitment and
Promotion. Since vide aforesaid judgment Co-ordinate Bench of this
Court had categorically ruled that merely because the decision was
taken in October, 2005 to fill up the posts would not mean that it
deprive the petitioner's husband from such regularization and it is the
availability of the posts to be filled in, in accordance with the
Recruitment and Promotion Rules, which is to be kept in mind while
considering the case of the petitioner's husband for regularization.
However, at no point of time respondents denied that no post of Class-
IV workers were available or filled up under Recruitment and
Promotion Rules before 2005, but their consistent stand has been that
since till 2005 there was ban imposed by the Government, case of the
petitioner's husband for regularization could not be considered against
the vacant post.
.
7. Learned Tribunal while passing order dated 19.11.2015 in
TA No.1356 of 2015 specifically recorded that there were 313 vacancies
available with the respondent-department when petitioner' husband
had become eligible to be regularized against the post in question. It is
not the case of the respondents that 313 vacancies were not available
in the department when petitioner's husband had become eligible for
regularization, rather there simple case is that unfilled vacancies could
not be filled up till 2005 on account of the ban imposed by the State
Government for filling up the vacant posts. However, such plea cannot
be made basis to reject the eligible claim of the petitioner's husband,
who admittedly had become eligible for regularization on his having
completed 10 years as part time Class-IV employee with 240 days in
each calendar year in terms of the Recruitment and Promotion Rules as
notified on 31.12.1998.
8. Reply filed by the respondents nowhere suggests that
petitioner's husband had not become eligible for regularization after
his having completed 10 years as part time employee with 240 days in
each calendar year as per Recruitment and Promotion Rules as notified
on 31.12.21998. Since petitioner had become eligible for regularization
on his having completed 10 years services as part time Class-IV
employee in terms of Recruitment and Promotion Rules as notified on
31.12.1998, he could not be denied such benefit on the ground that no
posts of Class-IV were filled up under Recruitment and Promotion
.
Rules as no approval was granted by the Government due to ban for
filling up the posts. Since posts were available when petitioner's
husband had completed 10 years regular service entitling him for
regularization in terms of Recruitment and Promotion Rules as notified
on 31.12.1998, mere delay in granting approval by the State
Government cannot be made ground to deny rightful claim of the
petitioner. r
9. Record reveals that petitioner before his death rendered 35
years uninterrupted service with the department. Though, as per
Recruitment and Promotion Rules petitioner' husband became entitled
to be regularized after 10 years of his having completed part time
service with 240 days in each calendar year, but yet for no fault of
him, he was denied his rightful claim and as such, his wife repeatedly
knocked the doors of court of law. Record reveals that despite there
being positive directions issued by this Court in one petition or other
respondents for no justifiable reasons kept on rejecting the case of the
petitioner. Though, this court finds that after passing of judgment
dated 13th December, 2012 by Co-ordinate Bench of this Court in CWP
No.2031 of 2011, respondent had no reason to deny the claim of the
petitioner, as has been raised in the petition, but yet authorities on one
pretext or other left no stone unturned to deny the rightful claim of the
petitioner's husband. Since, there is no dispute that 313 vacancies
were available when petitioner had completed 10 years regular service,
.
submission made by learned Deputy Advocate General that till year
2005, no vacancy could be filled up on account of the ban imposed by
the State Government has no relevance and deserves outright rejection.
Even after lifting of van by the State, case of the petitioner' husband
was required to be considered from the date when he had become
eligible for regularization on account of his having completed 10 years
regular service as part time worker with 240 days each in calendar
year. Though, now petitioner's husband services have been regularized
with effect from 19.10.2005 by granting one time relaxation qua
qualification, but such order of regularization from 19.10.2005 is not
sustainable for the reason that petitioner's husband ought to have been
regularized from the date when he had completed 10 years regular
service as part time worker. Secondly, case of the petitioner otherwise
could not be rejected by the respondents on the ground of qualification.
Hon'ble Apex Court in Bhagwati Prasad Versus Delhi State Mineral
Development Corporation, (1990)1 Supreme Court Cases 361, has
already held that minimum education qualification prescribed for the
different posts is undoubtedly a factor to be reckoned with, but is so at
the time of the initial entry into the service. Once the appointments are
made as daily rated workers and they are allowed to work for a
considerable length of time, it would be hard and harsh to deny them
the confirmation in the respective posts on the ground that they lack
the prescribed educational qualification. In the aforesaid judgment,
.
Hon'ble Apex Court has held that practical experience gained by daily
wager before his regularization always aid him to effectively discharge
the duties and is a sure guide to assess the suitability.
10. Consequently, in view of the above, the present petition is
allowed and order dated 10.1.2020 (Annexure P-9), passed by Director
Ayurveda, Himachal Pradesh is quashed and set-aside and
respondents are directed to regularize the services of the petitioner's
husband as per Recruitment and Promotion Rules as notified on
31.12.1998 from the date he had completed 10 years service as Part
Time Class-IV employee with 240 days in each calendar year with all
the consequential benefits. Pending applications, if any, also stands
disposed of.
27th August, 2021 (Sandeep Sharma),
(shankar) Judge
.
