District Mandi H.P. Aged vs State Of Himachal Pradesh And ...
2022 Latest Caselaw 8795 HP

                                 1




     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 27th DAY OF OCTOBER, 2022




                                                        .
                              BEFORE





                     HON'BLE MS. JUSTICE SABINA





                                 &

               HON'BLE MR. JUSTICE SUSHIL KUKREJA

                CIVIL WRIT PETITION No.7511 of 2022

         Between:-
                    r         to
         NISHA THAKUR WIFE OF VIPAN
         KUMAR RESIDENT OF VILLAGE
         AND POST OFFICE DHURKHARI

         TEHSIL BALDWARA DISTRICT
         MANDI H.P. PRESENTLY POSTED
         AT    GOVERNMENT     SENIOR
         SECONDARY SCHOOL KOT HATLI



         DISTRICT MANDI H.P. AGED
         ABOUT 43 YEARS.
                                                       ....PETITIONER




         (BY MR. DEVENDER K. SHARMA,
          ADVOCATE)





         AND





    1.   STATE OF HIMACHAL PRADESH
         THROUGH     ITS    PRINCIPAL
         SECRETARY (EDUCATION) TO THE
         GOVERNMENT OF HIMACHAL
         PRADESH, SHIMLA-171002.
    2.   DIRECTOR      OF         HIGHER
         EDUCATION,            HIMACHAL
         PRADESH, SHIMLA-1.
                                                  ....RESPONDENTS
         (BY MR. ASHWANI SHARMA,
         ADDITIONAL ADVOCATE GENERAL)




                                       ::: Downloaded on - 27/10/2022 20:34:35 :::CIS
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                  This petition coming on for admission this day, Hon'ble
    Ms. Justice Sabina, passed the following:




                                                                     .
                                ORDER

Petitioners have filed the petition under Article 226 of the

Constitution of India, seeking following relief:-

"i). That a writ in the nature of writ of mandamus may be issued directing the respondents to strictly implement,

Annexure P-3, dated 11.5.2018 and grant regularization of services of the petitioners with effect from 1.4.2018 along with all consequential benefits

and a writ of certiorari may kindly be issued and the

respondent be directed to modify the office order dated 20.8.2022 accordingly in the interest of justice and fair play.

ii) An appropriate writ, order or direction directing the respondents to fix the pay of the petitioners

accordingly and calculate and pay arrears of salary

along with interest."

2. Learned counsel for the petitioners has submitted that the

petitioners were initially appointed on PTA basis in the year 2006-2007.

Thereafter, vide policy decision dated 16 th August, 2013, the State of

Himachal Pradesh has decided to bring the services of the petitioners

on contract basis w.e.f. January, 2015. The petitioners were entitled for

regularization of their services on completion of three years contractual

service as per regularization policy.

3. Learned counsel for the petitioners has further submitted

that the case of the petitioners is duly covered by the decision given by

.

this Court in CWP No.342 of 2021, titled Yashwant Singh and others

versus State of Himachal Pradesh and others along with connected

matters, decided on 31.8.2022.

4. Learned Deputy Advocate General has not controverted

the submissions made by learned counsel for the petitioners.

5.

Operative part of the decision dated 31.8.2022, passed in

CWP No.342 of 2021, reads as under:-

"19.

With due deference to the judgments relied upon

by the respondents, we are of the considered view that the ratio laid down therein will not serve the cause of respondents for the reason firstly that, as held above, it

was not a case of fixation of cut-off date for the entire class, secondly that the above referred judgments were

passed in their own facts and lastly the only caveat generated is that the court should not normally interfere

with the fixation of cut-off date by the executive authority unless such order appears to be on the face of

it blatantly discriminatory and arbitrary or the said cut-off date leads to some blatantly capricious or outrageous result or it is shown to be totally capricious or whimsical.

We have no hesitation to hold that in the facts of instant case the impugned action of respondents is blatantly discriminatory and arbitrary. In R L. Marwaha v. Union of India (1987) 4 SCC 31, it has been held that fixing of a date for grant of benefit, must have nexus with the object sought to be achieved. The respondents, as

noticed above, at one stage had themselves supported the cause of petitioners for granting them permanency of job on the premise of financial compulsions faced by

.

it. They preferred contract employments or

employments under special policies at initial stage than the recruitments on regular basis for the same reason of

financial constraints. Once the courts upheld the contentions of respondents, they cannot be allowed to defeat the rights of petitioners by creating fictional

separate class of employees. Noticeably, the respondents have not declared any object for creating such imaginary classification and hence it is difficult nay

impossible to find necessary nexus between the

intelligible differentia and the object sought to be achieved.

20. It is also not a case where the respondents have

not come out with reasons in support of its actions and financial constraint is not one of the mentioned reasons.

Other reasons have already been held by us to be not qualifying the benchmark of reasonable classification

and hence have been adjudged to be discriminatory and arbitrary.

21. Lastly another futile attempt has been made on behalf of respondents by contending that some of the PTA-GIA teachers were taken on contract and some were left out, therefore, they being homogeneous class cannot be differentiated. According to respondents the grant of claimed benefit of regularisation to petitioners will discriminate the PTA-GIA teachers whose services were not taken on contract. Again, we do not find any reason to subscribe to the view expounded by

respondents. Petitioners are seeking the parity with other contract employees of the State Government on the premise of having formed the same class with them,

.

whereas the rights, if any, of those who have not yet

been taken on contract is not the subject matter of these petitions. Petitioners were taken on contract when

they qualified the criteria of having served as PTA-GIA teachers for seven years. Petitioners cannot be compared with those who had not fulfilled the requisite

criteria or were not taken on contract for any other reason.

22. In view of above discussion, the petitions are

allowed. Respondents are directed to regularise the

petitioners w.e.f. the due date i.e. 1.4.2018. Needless to say that the consequential benefits shall follow. The petitions are accordingly disposed of so also the

miscellaneous pending applications(s) if any."

6. Accordingly, this petition is disposed of, in terms of the

decision given by this Court in Yashwant Singh's case (supra).

Pending miscellaneous application(s), if any, also stand

disposed of.

(Sabina) Judge

(Sushil Kukreja) Judge October 27, 2022(ps)