Himachal Pradesh High Court
And vs Forestry on 13 December, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF DECEMBER 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION(ORIGINAL APPLICATION) No. 4297 OF 2019
Between:-
RAJEEV KUMAR AGGARWAL
SON OF SH. RAJ KUMAR AGGARWAL,
RESIDENT OF FLAT NO.1,
KALIND KUNJ, HOSPITAL ROAD, SOLAN, H.P.
(BY SH. MANISH SHARMA, ADVOCATE)
AND
r .....PETITIONER
DR. YASHWANT SINGH PARMAR UNIVERSITY
OF HORTICULTURE & FORESTRY, NAUNI, SOLAN,
DISTRICT SOLAN, H.P.
.....RESPONDENT
(BY SH. AVINASH JARYAL, ADVOCATE)
Whether approved for reporting?
__________________________________________________
This petition coming on for hearing this day, the
Court passed the following:
ORDER
Petitioner is presently working as an Assistant
Professor (Physics) in the respondent-university. His services
were regularized as such on 20.11.2010. By means of present
petition, he seeks his regularization with retrospective effect i.e.
from 22.03.2001.
.
2. Facts
2(i) Vide office order dated 21.03.1996 (Annexure P-1)
the petitioner was appointed as Assistant Professor (Physics) in
the respondent-university in the UGC Scale of Rs.2200-4000
plus usual allowances with one advance increment etc. The
appointment was on ad-hoc basis for a period of 6 months or till
the joining of Dr. S.S. Chandel, whichever was earlier. Dr. S.S.
Chandel, the regular incumbent on the said post at the time had
proceeded on deputation.
2(ii) Pursuant to his appointment, the petitioner joined the
respondent-university as an Assistant Professor (Physics) on
ad-hoc basis. Dr. S.S. Chandel did not join back his duties.
Consequently, the petitioner continued to serve as Assistant
Professor in the respondent-university.
2(iii) On 30.11.1996 (Annexure P-3), the State
Government issued instructions regarding regularization of
services of ad-hoc appointees. These instructions inter alia
provided that services of all such ad-hoc employees, who had
completed five years of continuous service on or before
30.11.1996 should be regularized subject to number of available
vacancies. The instructions also provided that such ad-hoc
.
employees who had not completed five years of service on
30.11.1996 should be allowed to work as such subject to
fulfillment of requisite qualification by them. Services of such
employees were to be regularized as and when they completed
the minimum five years of requisite service. The relevant clauses
from the instructions read as under:-
"1. Services of all such adhoc employees who have
completed 5 years continuous service on or before the date
of issue of these instructions, shall be regularized subject to
the number of vacancies available.
2-4. ......................................
5. Those adhoc employees who have not completed 5
years service on the date of issue of these instructions will
continue to work as such provided they fulfil the requisite
qualifications as mentioned above. Their services shall,
however, be regularized as and when they complete the
minimum requirement of 5 years service. "
Respondent-university vide notification dated 15.10.2010
(Annexure P-2) adopted the above extracted instructions dated
30.11.1996. The notification reads as under:-
" In pursuance of decision of the State Government conveyed
vide letter No.HTC.G(6)-1/2003 dated 23.09.2010, the
instructions regarding regularization of services of adhoc
appointees issued by the Chief Secretary to the Government
of Himachal Pradesh vide letter No.PER(AP-II)B(2)-5/86-III
dated 30.11.1996 (copy enclosed) which was approved by
.
the Board of Management in its 76 th meeting held on
04.07.2008 vide Item No.5 is hereby adopted in this
University."
2(iv) Subsequent to adoption of the Government
instructions dated 30.11.1996 by the respondent-University vide
its notification dated 15.10.2010, the services of the petitioner
were regularized vide office order dated 20.11.2010. In terms of
this office order, the services of the petitioner were regularized
from the date of assumption of duties.
2(v) Petitioner raised a grievance with the respondent-
university that his services were required to be regularized w.e.f.
22.03.2001 in light of State Government instructions dated
30.11.1996. He preferred a representation in this regard to the
respondent-university. The same was turned down by the
respondent-university on 10.06.2011 with the observation that "
the service rendered on adhoc basis on a post will count for
annual increments in accordance with the procedure as is
followed by the State Government, but such an adhoc service
will not count for purposes of seniority". The petitioner had
represented the respondent-university seeking his retrospective
regularization, whereas the respondent-university turned down
his purported prayer for grant of seniority, therefore, petitioner
.
again represented to the respondent to consider his
representation for retrospective regularization in terms of the
State Government instructions dated 30.11.1996. Vide letter
dated 10.10.2012, the respondent conveyed to the petitioner a
decision taken by the Board of Management of respondent-
university of rejecting his representation. It is in the aforesaid
background, the petitioner has preferred the instant petition with
the following substantive relief(s):-
"(i) That the impugned decisions conveyed to the petitioner
vide letter dated 10.06.2011, Annexure P-5, letter dated
5.4.2012, Annexure P-7 and letter dated 28.09.2012,
Annexure P-9 read with Annexure P-11 may kindly be
quashed and set aside.
(ii) That the respondent university may be directed to
regularize the petitioner as Assistant Professor (Physics) with
effect from 22.03.2001 in the light of instructions dated
30.11.1996 (Annexure P-3) read with notifications dated
15.10.2010 (Annexure P-2), with all consequential benefits."
3. Contentions
3(i). Learned counsel for the petitioner submitted that the
petitioner was entitled to the benefit of the State Government
instructions dated 30.11.1996. The petitioner had completed five
years of continuous ad-hoc service on 22.03.2001 and thus was
entitled to be regularized in service from the aforesaid date.
.
Learned counsel also placed on record and relied upon the
judgment dated 08.04.2015 delivered by a Coordinate Bench of
this Court in CWP No.5748/2013, wherein an employee serving
on ad-hoc basis with the respondent-university was given
deemed regularization on completion of 7 years of continuous
service with all consequential benefits. Learned counsel also
placed on record an office order dated 31.10.2015, whereunder
the judgment dated 08.04.2015 delivered in CWP No.5748/2013
was implemented by the respondent-university and ad-hoc
servies of its three employees were regularized. Reliance has
also been placed upon an office order dated 24.11.2009,
whereunder services of an employee (Dr. Parminder Kaur
Baweja) appointed on 10.09.1998 on co-terminus basis with the
project were regularized on 24.11.2009 from the date of her initial
appointment.
Learned counsel for the respondent-university
argued that the State Government instructions dated 30.11.1996
were not ipso facto applicable to it. That the Board of
Management of the respondent-university in its meeting
convened on 04.07.2008 approved the instructions dated
30.11.1996. Subsequently notification was issued on 15.10.2010
.
adopting the said instructions. It is only thereafter that the case of
the petitioner could be considered for regularization. The
petitioner was accordingly considered for regularization and
office order in this regard was issued on 20.11.2010. The
documents placed on record on behalf of the petitioner were not
disputed by the learned counsel for the respondents.
4. I have heard learned counsel for the parties and
gone through the documents made available during hearing of
the case as well as the entire case record.
5. In my considered view, there is substance in
petitioner's claim of retrospective regularization. Following
assumes significance in this regard:-
5(i) It is not in dispute that the petitioner was appointed
on ad-hoc basis vide office order dated 21.03.1996. In terms of
this office order, the ad-hoc appointment of the petitioner was for
a period of 6 months or till the joining of regular incumbent Dr.
S.S. Chandel, who at that time was on deputation. It is not in
dispute that regular incumbent Dr. S.S. Chandel did not join back
and the petitioner continued to discharge his duties against the
said post.
.
5(ii) The State Government instructions dated
30.11.1996 provided for regularization of services of ad-hoc
employees. According to the instructions, services of all such
ad-hoc employees, who had completed 5 years of continuous
service as on 30.11.1996 were to be regularized subject to
availability of vacancies. Those employees, who had not
completed 5 years of continuous service as on 30.11.1996 were
to be regularized as and when they completed 5 years of ad-hoc
service. The petitioner had completed 5 years of continuous ad-
hoc service on 22.03.2001.
5(iii) It appears from the record that the respondent-
university sought clarification from the Principal Secretary
(Horticulture) to the Government of Himachal Pradesh in respect
to the applicability of the Instructions dated 30.11.1996. Initially
under the office order dated 21.06.2006 (Annexure R-2),
response from the Horticulture Department was that the
instructions dated 30.11.1996 were not applicable to the
employees of Boards/Corporations/Universities. Subsequently on
23.11.2010 (Annexure R-3) Horticulture Department wrote to the
respondent-university that in case the university intended to
adopt the instructions in question then it was at liberty to adopt
.
the same keeping in view its financial resources. The letter being
relevant is extracted hereinafter:-
"From
Pr. Secretary (Hort.) to the
Government of Himachal Pradesh
To
The Registrar,
University of Horticulture & Forestry,
Nauni, Solan,
Dated Shimla-2 23 September, 2010
Subject:- Regularization of Adhoc employees
working in the UHF, Nauni-Solan.
Sir,
I am directed to refer to your letter No.
UH! Regr. Reell 2-39/2010/-10157 dated 25.06.2010 on the
above cited subject and to say that the matter was taken up
with the DOP who have advised in the matter that the
instructions regarding regularization of services of adhoc
appointees issued vide Deptt. of Personnel letter No. PER
(AP-1)-B(2)-5/86-111, dt. 30.11.1996 have not been issued/
made applicable by the Government to Boards/
Corporations/Universities, etc. In case however, if the
University intends to adopt the same, they are at liberty to
adopt the same keeping in view their financial resources.
Besides, as per this policy only the services of such
categories of adhoc employees in class-I,II,III & IV who have
completed 5 years of continues service on or before 30-
11.1996 can be considered for regularization subject to
number of vacancies available and fulfillment of terms and
conditions as laid down in the instructions after completing all
codal formalities.
.
The services of those adhoc employees who have not
completed 5 years service on the date of issue of these
instructions can also be considered for regularization under
the ambit of the aforesaid instructions. But the appointments
made on adhoc basis subsequent to the issuance of these
instructions ic. on or after 1-12-1996 cannot be regularized
under the aforesaid instructions as no such instructions on
the subject have been issue by the Govt alter 30.11.1996.
You are therefore requested to take further action in the
matter accordingly.
5(iv) It appears from the record that though the
Horticulture Department granted liberty to the respondent-
university to adopt the instructions vide its communication dated
23.09.2010, however, Board of Management of respondent-
university in its meeting held on 04.07.2008 had already
approved the instructions dated 30.11.1996. Noticeably while
approving/adopting the instructions dated 30.11.1996, the
respondent-university did not carry out any change in the cut-off
date, clauses etc. reflected in the said notification. Meaning
thereby, all those ad-hoc employees with the respondent-
university who were eligible in terms of the said notification were
to be conferred the benefits of regularization subject to fulfillment
of conditions mentioned therein and in accordance with the
instructions. Letter dated 23.09.2010 (Annexure R-3) (extracted
.
earlier) was also to the effect that services of the ad-hoc
employees of the respondent-university in Class I, II, III and IV
categories, who had completed 5 years of continuous service on
or before 30.11.1996 could be considered for regularization
subject to number of vacancies available and fulfillment of terms
and conditions laid down in the instructions after completing the
codal formalities. The letter reiterated that services of those ad-
hoc employees of respondent-university who had not completed
5 years of service on the date of issuance of the instructions
dated 30.11.1996 could be considered for regularization but the
appointment made on ad-hoc basis subsequent to 30.11.1996
could not be regularized, as no such instructions were issued by
the State after 30.11.1996.
5(v) It is not the case of the respondent-university that
the petitioner did not satisfy the eligibility criteria for
regularization of his services mentioned in the instructions dated
30.11.1996. It is also not the case of the respondent-university
that vacancy was not available with it for regularization of
petitioner's service as on 22.03.2001. In fact the petitioner was
appointed on ad-hoc basis against the substantive vacancy
which was earlier occupied by one Dr. S.S. Chandel.
.
5(vi) It will also be appropriate at this stage to take note of
judgment dated 8.4.2015 rendered in CWP No.5748/2013 titled
Yashpal Vs. Dr. Y.S. Parmar University of Horticulture and
Forestry, Nauni. The petitioner therein was appointed on ad-hoc
basis with the respondent-university on 30.12.1999. His case for
regularization was turned down by the respondent-university on
19.4.2011. In terms of the judgment, the petitioner was to be
deemed to have been regularized on completion of 7 years of
uninterrupted service alongwith consequential benefits. On the
basis of judgment, the respondent-university issued an office
order on 31.10.2015, whereunder ad-hoc services of three
employees belonging to Class-III and IV categories were
regularized with effect from the date they completed 7 years of
ad-hoc service.
5(vii) It will also be profitable to refer to the order dated
06.07.2009 passed by Hon'ble Division Bench of this Court in
CWP(T) No.15019/2008, disposing of the writ petition on the
basis of statement given on behalf of the respondent-university
that the petitioner therein (appointed on co-terminus basis with
the project) would be regularized from the date of her initial
appointment. The statement noticed in the order was honoured
.
by the University and an office order in this regard was issued on
24.11.2009 whereby the services of Dr. Parminder Kaur Baweja
[petitioner in CWP(T) No. 15019/2008] were regularized with
effect from date of her initial appointment i.e. 10.09.1998.
Learned counsel for the petitioner also submitted that in similar
manner the respondent-university had regularized the services of
various incumbents (as mentioned in para-9(I) of the petition)
who were appointed on co-terminus basis with the project from
the dates of their initial appointments. The factual aspects have
not been denied by the respondent-university.
For all the foregoing observations, I find merit in the
claim of the petitioner. Consequently, present petition is allowed.
Respondent-university is directed to consider the case of the
petitioner for his regularization as Assistant Professor (Physics)
w.e.f. 22.03.2001 in accordance with State Government
instructions dated 30.11.1996 (Annexure P-3) within a period of
six weeks from today and pass an appropriate order in this
regard, in accordance with law and in light of foregoing
observations. Pending miscellaneous application(s), if any, shall
also stand disposed of.
.
Jyotsna Rewal Dua
Judge
December 13th 2021 (rohit)
r to
