Himachal Pradesh High Court
Prem Lal vs Court on 29 December, 2021
Bench: Mohammad Rafiq, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
No.6830 of 2020
Between:-
1. PREM LAL
S/O SHRI SURAT RAM SHARMA,
R/O VILLAGE BAG, POST OFFICE PAHAL,
DISTRICT SHIMLA, H.P.
PRESENTLY WORKING AS
LECTURER (POLITICAL SCIENCE) IN
GSSS SHOGI, SHIMLA,
DISTRICT SHIMLA, H.P.
2. NARESH KUMAR
S/O PANNA LAL,
R/O VILLAGE JAG JARELI JAGTARLI,
TEHSIL ROHROO, DISTRICT SHIMLA,
PRESENTLY WORKING AS
LECTURER (COMMERCE),
GSSS BIACHRI, DISTRICT SHIMLA, H.P.
......PETITIONERS
(BY MR. KARAN SINGH PARMAR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (EDUCATION)
TO THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-2
2. DIRECTOR HIGHER EDUCATION,
HIMACHAL PRADESH, SHIMLA
......RESPONDENTS
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(BY MR. ASHOK SHARMA, ADVOCATE GENERAL
WITH MR. NAND LAL THAKUR, ADDITIONAL
ADVOCATE GENERAL)
This petition coming on for admission this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the following:
.
ORDER
The petitioners seek regularization on completion of
eight years of service.
2. Facts:-
2(i). The case of the petitioners is that they were engaged
as Lecturers on contract basis in the respondent-Education
Department in the year 1998. Their services were terminated w.e.f.
11.05.2000 and 19.05.2000, respectively, on joining of regular
incumbents. Petitioners were re-engaged in the year 2001 after the
decision in CWP No.415 of 2000, titled Baldev Singh & others
Versus State of H.P. & others.
2(ii). Subsequently, in view of the orders passed by this
Court, the respondents regularized the services of the petitioners by
taking the dates of their initial engagement as starting point of their
service. The regularization order was issued by the respondents in
favour of the petitioners in July, 2018.
2(iii). The grievance of the petitioners in the instant petition is
that their services have been regularized on completion of 10 years
of service, whereas, they were required to be regularized on
completion of eight years of service at par with similarly situated
persons. The substantive prayer made in the petition is as under:-
.
"(i) That regularization order of the applicant issued in July, 2018
(Annexure A-2) may kindly be quashed and set aside to the
extent it regularize the services of the applicants on
completion of ten years of service with further direction to
respondents to regularize the services of the applicants on
completion of eight years of service i.e. with effect from
1.1.2006/1.1.2007 which may deem fit by this Hon'ble Court."
3. During hearing of the case, learned counsel for the
petitioners placed on record a judgment dated 10.04.2013, rendered
in CWP No.1853 of 2009, titled Arpana Bali Versus The State of
Himachal Pradesh & Others. In the said case, the respondents-
State had declined to regularize petitioner's (therein) services on the
ground that there was break in her service w.e.f. 22.03.1999 till
19.05.1999. The State had asserted that the petitioner therein was
re-engaged on 20.05.1999, therefore, she had not completed eight
years of continuous service on 10.11.2006. This was the reason
given by the respondents-State for not regularizing the services of
said Arpana Bali. The petitioner therein had claimed that break in
her service w.e.f. 22.03.1999 to 19.05.1999 was on account of act,
conduct and deeds attributable to the respondents and not on
account of any fault on her part. The Court held that the period from
22.03.1999 to 19.05.1999 cannot be treated as break in service of
the petitioner-Arpana Bali. That she had completed eight years of
continuous service as on 10.11.2006. The Court held the petitioner
therein entitled to regularization of her services on completion of
.
eight years of service, i.e. with effect from 10.11.2006. Relevant
paras from the judgment read as under:-
"15. True it is that as per the policy dated 9.6.2005, Annexure-I, the
services of those contractual appointees like the petitioner,
who had completed eight years of service on 31.12.2004 and
those likely to complete eight years of service as on
31.12.2005 had to be regularized w.e.f. 1.1.2005 and 1.1.2006
respectively. The petitioner admittedly had completed eight
years of service after 31.12.2005 i.e. 10.11.2006. This Court,
however, is not in agreement with the submissions that the
case of the petitioner being not covered under this policy and
that only those contractual appointees having completed eight
years of service as on 31.12.2004 or 31.12.2005 have been
regularized for the reason that as per the own stand of the
respondent-department in the reply to the writ petition, the
services of those incumbents, who had completed eight years
of continuous service as on 10.11.2006 were regularized and
as the petitioner had also completed such services as on
10.11.2006, therefore, her services have also been regularized
w.e.f. 10.11.2006/31.12.2006. The non-regularization of her
services leads to the only conclusion that she has been denied
the benefit of regularization from 10.11.2006/31.12.2006
illegally, arbitrarily and rather discriminating against similarly
situated persons on account of there being break in her
service which stand of the respondent department has not
been approved by this Court as per the findings recorded
hereinabove and rather has been held as illegal. It has further
been held that the period w.e.f. 22.3.1999 to 19.5.1999 cannot
be said to a break in her service and rather has to be counted
towards the continuity in service and seniority. The petitioner,
therefore, is entitled to regularization of her services on the
completion of eight years of service i.e. 10.11.2006.
16. This court is also not satisfied with the arguments that after
completion of eight years of service by the petitioner, she has
rightly been considered as per the policy dated 9th September,
2008, Annexure-II, for the reason that as per this policy, the
services of those incumbents, who had completed eight years
of continuous service as on 31.3.2008, were to be regularized.
The petitioner, however, had already completed eight years of
service as on 10.11.2006, therefore, was entitled to be
considered for regularization immediately thereafter having
acquired the requisite service well before 31.12.2008, and
during the currency of the policy dated 9.6.2005, Annexure-I
.
referred to hereinabove.
17. There is again no substance in the arguments addressed on
behalf of the respondent-State that there was no policy in
existence during the year 2006 or 2007 and that the petitioner
could have only been considered on coming into being the
new Policy viz the policy dated 9th September, 2008 for the
reason that in a bunch matter of daily wagers (CWP No.2735
of 2010, titled Rakesh Kumar vs. State of H.P.& Others and its
connected matters) decided by the Principal Bench of this
Court vide judgment dated 28.7.2010, while holding that the
Policy of 2000 was in existence till the new one was
introduced on 9th June, 2005, the daily wagers, who had
acquired the requisite number of working years in the
interregnum were also held liable to be brought on work
charge establishment as per the old policy framed in the year
2000. Therefore, applying these principles in the present case,
the services of the petitioner should have been regularized on
completion of the eight years of service.
18. The upshot of the above discussion would be that the
petitioner is entitled to be regularized as Lecturer Music
(Vocal) w.e.f. 1.1.2007 instead of 31.12.2008, however, only
on notional basis from the said date and entitled to the actual
financial benefits from the date she has joined as Lecturer
Music (Vocal) on regular basis pursuant to impugned order
Annexure P-13. The impugned order is hereby ordered to be
modified, accordingly."
Learned counsel for the petitioners also submitted that
original petitioner No.7, Sh. Mahender Kumar S/o Shri Pyare Lal,
was deleted from the array of parties in the instant case. Said
Sh. Mahender Kumar filed CWP No.3273 of 2019 seeking his
regularization on completion of eight years of services with effect
from the date of his first engagement in the year 1998. The said writ
petition was disposed of on 17.07.2020 in the following terms:-
"Learned counsel for the petitioner states that the issue in
question is squarely covered by the judgment rendered in
CWP No. 1853 of 2009-D, titled as Arpana Bali vs. The State
of Himachal Pradesh and others, decided on 10th April, 2013
.
and the said judgment, in turn, stands implemented by the
respondents. This is a matter which is required to be
considered by the employer.
2. Accordingly, the present petition is disposed of with a direction
to respondent No. 2 to consider and decide the case of the
petitioner in light of the averments made in this petition and,
more particularly, the judgment rendered in Arpana Bali's case,
which stands implemented. Needful be done within four weeks
and in case the petitioner is similarly situated to Arpana Bali's
case, then consequential action be taken within two weeks."
dated 17.07.2020
r has to
Learned counsel further submitted that the judgment
already been implemented by the
respondents. Order dated 22.01.2021 was passed in this regard,
regularizing the services of said Sh. Mahender Kumar w.e.f.
01.01.2007 on notional basis. Due and admissible monetary benefits
were restricted to him from the date he had actually joined the
duties. Office order dated 22.01.2021 has been placed on record by
the petitioners, relevant portion of which reads as under:-
"Now therefore, facts and circumstances of the case Smt.
Arpana Bali was engaged in the year 1998 and petitioner
namely Sh. Mahender Kumar was also engaged in the year
1998 having completed 08 years services as on 31.12.2006.
Smt. Arpana Bali has been allowed regularization w.e.f.
01.01.2007 notionally. Hence the regularization is hereby
allowed to Sh. Mahender Kumar w.e.f. 01.01.2007 on notional
basis. However, the due and admissible monitory benefits be
restricted from the date he had joined duties pursuant office
order dated 27.07.2010. The Principal Govt. Sr. Sec. School
Behli is further directed that arrear be released as per Finance
Department instructions dated 07.01.2012 & 15.12.2011 and
the entry in this regard may also be made in the service book
of the petitioner. May inform the parties accordingly."
The petitioners contend that they are similarly situated
.
as the said Sh. Mahender Kumar and are entitled for the same
benefits as have been released in favour of Sh. Mahender Kumar.
4. In view of the above submissions and taking note of the
judgment passed in CWP No.1853 of 2009, titled Arpana Bali
Versus The State of Himachal Pradesh & Others as well as the
judgment passed in CWP No.3273 of 2019, titled Mahender Kumar
Versus State of H.P. & Ors., and the order dated 22.01.2021 passed
by the respondents, regularizing the services of said Sh. Mahender
Kumar on completion of eight years of services, we direct the
respondents to decide the cases of the petitioners for their
regularization on completion of eight years of continuous service by
passing speaking orders in accordance with law, within a period of
four weeks from today.
The petition stands disposed of in the above terms, so
also the pending miscellaneous application(s), if any.
( Mohammad Rafiq )
Chief Justice
( Jyotsna Rewal Dua )
December 29, 2021 Judge
Mukesh
