Nirmla Devi vs State Of H.P. And Others
2023 Latest Caselaw 4939 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                     CWPOA No. 7819 of 2019




                                                                             .
                                                     Decided on: 01.05.2023





Nirmla Devi                                                          ....Petitioner.





                        Versus
State of H.P. and others                                             ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.





Whether approved for reporting?1 Yes.
For the petitioner:          Mr. Arun Kumar, Advocate.

For the respondents:         M/s Pushpender Jaswal and Baldev Negi, Additional

                             Advocate Generals, with Mr. Gautam Sood, Deputy

                             Advocate General.

Ajay Mohan Goel, Judge (Oral):

By way of this petition, originally filed as an Original

Application before the erstwhile learned Himachal Pradesh Administrative

Tribunal, the petitioner has sought the relief of quashing of termination order

dated 18th March, 2016 (Annexure A-3) with further direction to the

respondents to regularize her services in terms of the Policy of the State.

2. The case of the petitioner is that she was initially engaged

as a Daily Wage Labourer/Contract Beldar in the year 2001 in Horticulture

Department Sale Shop Kinoo, Tehsil Amb, District Una, H.P. She was

assigned the work in the nature of preparation of pickles, jam and jelly etc.

and also for imparting training to the local people and guiding them. She was

thus performing multifarious tasks in the course of her job. She worked from 9 1 Whether reporters of the local papers may be allowed to see the judgment?

a.m. to 5 p.m. minimum and had also completed more than 240 days in each

calendar year from the year 2002 onwards. She was getting the salary on

.

daily wage basis and her signatures were taken by the respondent-

Department on bills of payment reflecting that she was working under a

Contractor, which was totally incorrect. It was further the case of the petitioner

that she made several requests with regard to regularization of services, yet

her services were not being regularized and to the contrary, her services

stood terminated illegally in terms of order dated 18.03.2016 (Annexure A-3),

in terms whereof, the instructions were issued by the Authority to do away

with the services of the petitioner and other similarly situated persons.

3. The petition is resisted by the State, inter alia, on the

ground that the petitioner was engaged on hourly basis w.e.f. 01.06.2001 for

seasonal work and was continued in subsequent years subject to availability

of work and funds at Processing-Cum-Training Centre at Kinoo, District Una,

H.P. She was also helping the regular technical staff of the Fruit Processing

Unit in performance of various activities, but she was not eligible for

regularization in terms of the Policy of the Government, as she was not

fulfilling the requisite criteria. It was further the stand of the respondents that

there was no illegality in the act of the Department of disengaging the

services of the petitioner in compliance to the directions issued by the

Government from time to time, in terms whereof, no recruitment of the daily

waged/muster roll worker was to be made by the Department /Board etc.

without the approval of the Finance Department.

4. Before proceeding further, it is pertinent to mention that in

terms of order dated 07.07.2016, passed by the erstwhile learned Himachal

.

Pradesh Administrative Tribunal, respondents were directed to allow the

petitioner to continue to work as before and this order is in operation till date.

On the last date of hearing, this Court had directed the State to produce the

record relatable to the engagement of the petitioner and the relevant record

that stands produced by the learned Deputy Advocate General demonstrates

that in the year 2001, the petitioner had worked for 217 days followed with

353 days' work in the year 2002, 249 days' work in the year 2003, 311 days'

work in the year 2004, 269 days' work in the year 2005, 321 days' work in

2006, 300 days' work in 2007, 286 days' work in the year 2008, 295 days'

work in the year 2009, 76 days' work in the year 2010, 155 days' work in the

year 2011, 283 days' work in the year 2012 and so forth. It is also not much

in dispute that the petitioner is still continuing in service on the strength of the

order passed by the learned Tribunal.

5. I have heard learned counsel for the petitioner as also

learned Deputy Advocate General and have also gone through the pleadings

as well as the documents appended therewith.

6. The grievance of the petitioner has already been

mentioned by me hereinabove. The termination of the services of the

petitioner in terms of Annexure A-3, dated 18.03.2016, inter alia, is on the

ground that the engagement of seasonal workers without permission of the

Government is in violation of the instructions issued in this regard by the

Government and the incumbents who have been engaged on hourly basis

should not be engaged without the approval of the Government. The work

.

that is being performed by the petitioner, which has not been disputed in the

course of arguments, is that the petitioner is performing the job of preparation

of pickles, jam and jelly etc. and in addition, she is also assisting the staff of

Horticulture Department Sale Shop Kinoo, Tehsil Amb, District Una, H.P. and

further, she is also imparting training to the local residents of the area and

guiding them with regard to the preparation of pickles, jam and jelly etc. On

the strength of the instructions so received, learned Deputy Advocate General

has fairly submitted to the Court that though on record the engagement of the

petitioner is on hourly basis and her wages are also being paid to her by

making calculation on hourly basis, but the fact of the matter remains that the

petitioner is performing her job full day, i.e., from morning to evening, like any

other worker.

7. The very fact that the petitioner continued to be in service

from 2001 up to 2016 when the termination order was passed by the

Authority concerned demonstrates that the work was available, against which

she was deployed. In fact, even the language of Annexure A-3 demonstrates

that the services of the petitioner were not being dispensed with for want of

work, but for the reasons mentioned therein, which has got nothing to do with

the availability of the work. Annexure A-3 incidentally is dated 18th March

2016 and the record which stands produced before the Court demonstrates

that in the year 2015, the petitioner had put in 238 days' work, whereas in the

year 2016, she had put in 185 days' work. That being the case, this Court is

of the considered view that dispensing with the services of the petitioner in

.

terms of Annexure A-3 and that too without appreciating the factum of the

petitioner religiously performing her duties for the last 16 years was nothing,

but an arbitrary act which is not sustainable in the eyes of law, as it is a

matter of record that the petitioner was performing her duties from the year

2001 minimum from 9:00 a.m. to 5:00 p.m. in the Horticulture Department

Sale Shop Kinoo, Tehsil Amb, District Una, H.P. This order, therefore, is

liable to be quashed and set aside as the reasoning assigned therein to do

away with the services of the petitioner and similarly stated persons is not

sustainable in law. Workman like the petitioner cannot be used as a comodity

of the Government for a long time and thereafter, permitted to be dumped to

deny them the benefits of the Policy of regularization of daily waged workers.

In this case, de hors as whatsoever the nomenclature of the petitioner is, the

fact of the matter remains that she is serving from 9:00 a.m. to 5:00 p.m. just

like any other Daily Waged Worker and in this process has completed more

than 240 days in umpteen number of years. That being the case, rather than

regularizing the services of the petitioner, the act of the respondents of

dispensing with her services is therefore also not sustainable in the eyes of

law.

8. Accordingly, in view of the above discussions, the present

petition succeeds. Annexure A-3 dated 18.03.2016 is quashed and set aside

being bad in the eyes of law and being an act of colourable exercise of

powers and the respondent-State is directed to regularize the services of the

petitioner upon completion of eight years of service or the number of years in

.

the regularization Policy as will be applicable in her case, by construing her to

be appointed on daily wage basis from the year 2002 onwards. This Court is

not calling upon the Government to take into consideration the year 2001 for

the reason that in the said year, the petitioner is stated to have worked for

less than 240 days. However, as from the year 2002, the services of the

petitioner be regularized in terms of the Policy of regularization of the

Government, upon the petitioner completing requisite number of years with all

consequences, but with the rider that monetary consequences as from the

date of regularization would be deemed and actual benefits will accrue as

from the date of passing of this judgment. Taking into consideration the

peculiar facts that are involved in the present case, it is directed that

supernumerary post for the purpose of regularization of the petitioner be

created by the State Government, if necessary, as a measure personal to the

petitioner, so that justice can be done to her. Petition stands disposed of in

above terms, so also pending miscellaneous application, if any.

(Ajay Mohan Goel) Judge May 01, 2023 (bhupender)