Himachal Pradesh High Court
Vikram Singh vs Himachal Road Transport ... on 9 November, 2023
Bench: Vivek Singh Thakur, Bipin Chander Negi
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWPOA No. 2343/2020, CWP Nos. 823, 4467,
4468, 4609, 4613, 4614, 4615, 4628, 4632, 4633,
4634, 4635, 4654 of 2020, CWPOA Nos. 2090,
2178, 2385, 3011, 3421, 4254, 4278, 4279, 4294,
4297, 4300, 4302 and 4336 of 2020.
Reserved on : 15.09.2023
CWPOA Nos. 6232, 5711,5801,6916 of 2019,
CWP No. 5168 of 2020, CWPOA Nos. 2821,
2824, 2833, 2846 of 2020, CWP No. 941 of
2021 and CWP No. 6987 of 2022.
Reserved on : 18.09.2023
r Date of Decision: 09 November, 2023.
1. CWPOA No. 2343 of 2020
Vikram Singh ......Petitioner
Versus
Himachal Road Transport Corporation
.....Respondent
2. CWP No.823 of 2020
Jaswant Singh .....Petitioner
Versus
Himachal Road Transport Corporation .....Respondent
3. CWP No. 4467 of 2020
Ghanshyam Singh .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
.
4. CWP No. 4468 of 2020
Dhani Ram .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
5. CWP No. 4609 of 2020
Durga Dutt .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
6. CWP No. 4613 of 2020
Padam Singh .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
7. CWP No. 4614 of 2020
Khem Singh .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
8. CWP No. 4615 of 2020
Ghanshyam .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
9. CWP No. 4628 of 2020
Himat Ram .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
.
10. CWP No. 4632 of 2020
Uma Shankar .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
11. CWP No. 4633 of 2020
Inder Singh .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
12. CWP No. 4634 of 2020
Tej Ram .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
13. CWP No. 4635 of 2020
Shashi Bhusan .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
14. CWP No. 4654 of 2020
Puran Chand .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
15. CWPOA No.2090 of 2020
Rami Chand & others .....Petitioners
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
.
16. CWPOA No. 2178 of 2020
Surjeet Singh & others .....Petitioners
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
17. CWPOA No. 2385 of 2020
Gurbax Singh & others .....Petitioners
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
18. CWPOA No. 3011 of 2020
Rakesh Kumar & others .....Petitioners
Versus
Himachal Road Transport Corporation & Ors. .....Respondents
19. CWPOA No. 3421 of 2020
Ishwar Dass & others .....Petitioners
Versus
Himachal Road Transport Corporation & Ors. .....Respondents
20. CWPOA No. 4254 of 2020
Mukesh Kumar .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
21. CWPOA No. 4278 of 2020
Ram Chand .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
.
22. CWPOA No. 4279 of 2020
Punjab Singh .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
23. CWPOA No. 4294 of 2020
Piar Singh .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
24. CWPOA No. 4297 of 2020
Pawan Kumar .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
25. CWPOA No. 4300 of 2020
Parkash Chand .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
26. CWPOA No. 4302 of 2020
Sugreev Kumar .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
27. CWPOA No. 4336 of 2020
Raj Kumar .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
.
28. CWPOA No. 6232 of 2019
Hira Lal .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
29. CWPOA No. 5711 of 2019
Chander Parkash Verma .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
30. CWPOA No. 5801 of 2019
Dharam Parkash .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
31. CWPOA No. 6916 of 2019
Bhubnesh Kumar .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
32. CWP No. 5168 of 2020
Krishan Lal .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
33. CWPOA No. 2821 of 2020
Anil Kumar .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
.
34. CWPOA No. 2824 of 2020
Suresh Kumar .....Petitioner
Versus
Himachal Road Transport Corporation & Ors. .....Respondents
35. CWPOA No. 2833 of 2020
Charan Dass .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
36. CWPOA No. 2846 of 2020
Chakar Ram .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
37. CWP No. 941 of 2021
Ghanshyam Singh .....Petitioner
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
38. CWP No. 6987 of 2022
Mohan Lal & others .....Petitioners
Versus
Himachal Road Transport Corporation & Anr. .....Respondents
Coram:
.
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting? Yes
For the petitioner (s): M/s Shyama Prashad Chatterji, Sanjeev
Kumar Motta, Avinash Jaryal and Balwant
Singh Thakur, Advocates for the
respective petitioner(s).
For the respondents: Mr. Anup Rattan, Senior Advocate with
Ms. Shubh Mahajan, Mr. Raman Jamalta
and Mr. Shyam Singh, Advocates, for the
respective respondents.
____________________________________________________
Bipin Chander Negi, Judge
Since common questions arise for consideration in all these
matters, therefore, with the consent of the parties, the same are
being taken up together for disposal.
2. The brief facts giving rise to the present petitions are
admitted and lie in a narrow compass. Vide order dated
23.03.1996, in exercise of powers conferred by Section 45 of the
Road Transport Corporation Act, 1950 (hereinafter referred to as
"the Act"), the Board of Directors of the Himachal Road Transport
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Corporation (hereinafter, for purpose of brevity, referred to as "the
respondent-Corporation") with the prior concurrence of the
.
Government of Himachal Pradesh, made regulations called the
Himachal Road Transport Corporation (Class I, II, III, IV) Service
(Recruitment, Promotion and Certain Conditions of Service)
Regulations, 1996. The same came into effect from the very
same date. At this juncture, it would be appropriate to refer to the
Repeal and Savings Clause provided under the aforesaid service
regulations. The same Clause is being reproduced herein below
for ready reference:-
"15. REPEAL AND SAVING:
The Corporation shall have the inherit right to amend,
alter or modify these regulations at any time at its sole
discretion, in consultation with the State Government where
necessary.
Provided that it shall not affect in any manner
anything done or any action taken already under the relevant
rules, regulations, directions or orders in force or applicable
at the relevant time."
3. Thereafter, vide instructions dated 12.12.2003, the
Government of Himachal Pradesh informed all concerned that the
Government had decided to incorporate "contract" recruitment as
a mode of recruitment in addition to the other existing modes of
recruitment, i.e., "direct" and "promotion" in all the Recruitment
and Promotion Rules. The respondent-Corporation, in furtherance
of the aforesaid instructions, amended its Service Regulations on
.
03.08.2006, whereby 'contractual recruitment' was added as an
additional mode to the already existing modes of recruitment
prescribed therein.
4. In the 95th meeting of the Board of Directors of the
respondent-Corporation held on 02.08.2003 vide Item No.4
contained therein, a decision was taken to recruit 153 Drivers, on
contract basis, on a fixed amount of Rs.5,000/- per month. The
present petitioners have been appointed as Drivers in pursuance
of the aforesaid decision taken. The recruitment in pursuance to
the aforesaid had taken place in the year, 2003-06. The
petitioners were regularized after 6-8 years of their appointments
on contract basis.
5. The grievance of the petitioners is that they have been
regularized after six years of service, whereas in certain cases,
details whereof have been given in the petition, similarly situate
individuals have been regularized after one year of service. Other
than the aforesaid, the petitioners' contention is that in the service
regulations there is no provision for contractual appointment.
Hence, their appointments should be made on a regular basis.
6. Feeling aggrieved, some of the petitioners had preferred
Original Application before the erstwhile Himachal Pradesh State
.
Administrative Tribunal. The Original Applications so filed were
disposed of by the erstwhile Tribunal directing the respondent-
Corporation to consider their cases. While disposing of the
aforesaid Original Applications, a specific reference was made to
decision rendered by this Court in CWP No.9279 of 2011, titled as
Jagdish Chand and others vs. Himachal Road Transport
Corporation, decided on 09.01.2014. A reference to the
aforesaid was made, as parity was being sought on the basis of
the same.
7. A perusal of the consideration order dated 6.4.2017 passed
in furtherance of the directions issued by the erstwhile Tribunal
reflects that the cases of similarly situate individuals were
dismissed on account of the fact that Jagdish Chand who had
been granted relief in CWP No.9279 of 2011 was not similarly
situate as the present petitioners/applicants who had approached
the erstwhile Tribunal for Jagdish Chand had been appointed prior
to Government of Himachal Pradesh instructions dated
12.12.2003 issued by the Department of Personnel, wherein the
Government had asked all concerned to modify their Recruitment
& Promotion Rules in order to incorporate a new mode of
recruitment, i.e, 'contractual appointment'.
.
8. In the aforesaid backdrop, the present petitioners have
approached this Court. In the reply filed, respondent-Corporation
has taken a plea of existence of an alternate remedy in terms of
the Industrial Disputes Act, 1947. Other than the aforesaid, the
respondent-Corporation has raised a plea of acquiescence for
according to the respondent-Corporation, the petitioners have
accepted their appointments without any protest and they got their
contracts renewed annually. A plea that the petition is barred by
limitation/delay & laches has also been taken.
9. The respondent-Corporation has further, in it reply,
contended that since its incorporation it is following the general
instructions including Policies relating to recruitment, condition of
service, training of its employees and wages being paid as issued
by the State Government in this regard. Based on the aforesaid, it
is contended that the instructions dated 12.12.2003, whereby the
State had directed all concerned to modify their Recruitment and
Promotion Rules in order to incorporate a new mode of
recruitment, i.e., contractual appointment, is being followed "in
principle" by the respondent-Corporation, though service
regulations in this respect were amended on 03.08.2006
.
10. Other than the aforesaid, it would be appropriate to refer to
the reply of the respondent-Corporation, wherein it is categorically
stated that in pursuance to the Board of Directors 95th meeting
held on 02.08.2003 in Item No.4, it was decided to recruit 153
Drivers on contractual basis at Rs.5,000/- per month. Besides the
aforesaid, with respect to employees who had been regularized
after one year, the stand taken by the respondent-Corporation is
that they have been engaged before 12.12.2003 (date of issuance
of instruction of State Government).
11. We have heard learned counsel for the parties and have
carefully gone through the record.
12. From a perusal of the record, it is interesting to note that in
the minutes of the 77th meeting of the Board of Directors of the
respondent-Corporation, held on 26.12.1994, Item No.77.2, had
been placed for consideration of the Board of Directors. A perusal
whereof reflects that a procedure sought to be adopted for making
contractual recruitment had been placed for the consideration of
the Board. The aforesaid procedure was sought to be followed
post relaxation of the Recruitment and Promotion Rules in this
respect. In the procedure proposed 7 conditions were placed for
the consideration of the Board with respect to make a contractual
.
recruitment. Condition No.vii was as follows:-
"After completion of one year, the cases will be reviewed for
offering regular employment".
13. The aforesaid proposal was accepted by the Board,
however, the aforesaid condition No.vii had been deleted.
Despite the same, a condition in this regard was incorporated in
the terms and conditions of appointment. The relevant extract of
the condition incorporated in this regard in the appointment letters
issued despite the same having been rejected by the Board is
being reproduced herein below:-
"3. The appointment will be initially for 89 days where
after each case will be considered for regular appointment
by the appointing authority concerned on merits on his one
year performance basis."
It is an admitted fact that regularization of individuals,
appointed on contractual basis in pursuance to the Board's
approval in its 77th meeting held on 26.12.1994, was after one
year.
14. Other than the aforesaid, it would be appropriate to refer to
Office order dated 30.06.2014 passed in favour of Hoshiar Singh,
a Driver working in the respondent-Corporation. The said
individual was appointed as a Driver on 30.03.2001 (contract
.
basis) as per the terms and conditions of his appointment, his
services were to be regularized after one year. However, the
services of the said individual were regularized on 18.04.2011.
Being aggrieved by the belated regularization, the said individual
had approached the Managing Director of the respondent-
Corporation, who after considering the case, allowed his
regularization on completion of one year service in terms of the
condition of appointment. The Managing Director further held that
since with respect to the working of Hoshiar Singh, there was
never any objection raised by the respondent-Corporation rather it
was added to the same that the said individual's contract had
been renewed, therefore, there was no requirement of assessing
the merit of Hoshiar Singh.
15. From the documents which have been placed on record by
the respondent-Corporation, specifically Annexure R/P dated
29.10.2004, it is clearly evident that in the case of one Sunder
Mohan, Virender Kumar, Kulwant Singh Sanamguru, Shadi Ram,
Raghubir Singh and Arun Kumar, condition No.3 as had existed
in previous contracts, detail whereof has been already stated
supra, was incorporated in their contracts despite the fact that
their recruitments had been made in the year, 2004. The same
.
belies the contention of the respondent-Corporation that post
12.12.2003, there was no provision for regularizing the
incumbents appointed after one year. The stand now taken is
that such individuals have not been regularized after one year
despite the existence of a condition in this regard. The stand is of
no consequence as this condition has not been withdrawn,
meaning thereby that they are entitled to benefits of CWP
No.9279 of 2011 titled as Jagdish Chand and others vs. HRTC,
which have been denied to them.
16. Strong reliance has been placed by the petitioners on the
judgment passed by a Co-ordinate Bench of this Court in LPA
No.21 of 2013, titled State of HP and others vs. Ravinder
Kumar alongwith connected matters, decided on 4.10.2019.
Based on the aforesaid, it is strongly contended by the petitioners
that in the absence of a provision for making contractual
appointment in the respondent-Corporation, the same could not
have been made, therefore, their appointments right from the start
need to be treated as regular appointment. The ratio of the
judgment referred to above clearly supports the case of the
petitioners and on this count they are entitled to claim
appointment(s) on regular basis with effect from their initial date of
.
appointment(s). The recruitments had been made in accordance
with the prescribed eligibilities in the R&P Rules and after duly
advertising the posts.
17. At this juncture, it would be appropriate to refer to Section
45, which relates to the power to make regulations and reads as
under:- r
"45. Power to make regulations.--
(1) A Corporation may, with the previous sanction of the
State Government, make regulations, not inconsistent
with this Act and the rules made thereunder, for the
administration of the affairs of the Corporation.
(2) In particular, and without prejudice to the generality of
the foregoing power, such regulations may provide for
all or any of the following matters, namely:--
(a) the manner in which, and the purposes for which,
persons may be associated with the [Board] under
section 10;
(b) the time and place of meetings of the [Board] and
the procedure to be followed in regard to transaction
of business at such meetings;
(c) the conditions of appointment and service and the
scales of pay of officers and [other employees of the
Corporation other than the Managing Director, the
Chief Accounts Officer and the Financial Adviser or,
as the case may be, the Chief Accounts Officer-cum-
Financial Adviser];
.
[(d) the issue of passes to the employees of the
Corporation and other persons under section 19;
(e) the grant of refund in respect of unused tickets
and concessional passes under section 19.]"
18. Undoubtedly, Section 45 of the Act empowers the
Corporation to make regulations, but that is subject to the
requires three steps:-
r to
previous sanction of the State Government. This necessarily
"(i) The Corporation "frames or "proposes" regulations by
its resolution. These have to be sent to the State
Government for according sanction.
(ii) The State Government then accords its sanction. In
this power of the Government it is implicit that it may
reject or suggest amendment or modification in the
proposed regulations and eventually accord its
sanction.
(iii) After the State Government accords its sanction, the
Corporation "makes" regulations."
19. The power conferred on the Corporation to make
regulations is a power which, under Section 5(1), vests in and is
exercised by the Board of Directors of the Corporation. Whereas,
the power to make regulations relating to the conditions of service
of officers and other employees of the corporation, under Section
45(2)(c) is vested in the Board of Directors of the Corporation and
such a power to make regulations (commonly termed as Rules by
.
the Corporation) can only be exercised with the previous sanction
of the State Government.
20. In so far as the plea of alternate remedy is concerned, since
the petitioners are claiming a right to be considered for
regularization on completion of one year of service and
discrimination is writ large on account of the fact that similarly
situate employees like the petitioners have been treated
differently, therefore, there is an infraction of fundamental rights of
the petitioners guaranteed under Article 14 of the Constitution of
India. Hence, in view of law laid down by the Hon'ble Supreme
Court in Whirlpool Corporation vs. Registrar of Trade Marks,
Mumbai and others, reported in 1998 (8) SCC 1, we find no
force in the contention of the respondent-Corporation in this
regard. More so, when the facts are admitted and the remedy to
which the petitioners are being sought to be relegated would not
be efficacious, at this stage, as the same would unnecessarily
defer adjudication of the present petitions. Besides the aforesaid
plea of existence of an alternate remedy is an exercise on
account of judicial restraint which we are of the considered
opinion would not be appropriate to be exercised in the facts and
circumstances of the cases at hand.
.
21. The plea that the petitioners had accepted their
appointment without any protest is also liable to be rejected on
account of existence of un-equal bargaining power inter se
parties. The petitioners were in no position to dictate terms of
appointment. The petitioners had accepted a paltry salary of
Rs.5,000/-, which is admittedly lesser than what would have been
given to incumbents appointed regularly for doing the same job.
The same reflects an exploitative tendency on the part of the
respondent-Corporation and does not behove of the Corporation
as a model employer. In this regard, it would be appropriate to
refer to the decision of the Hon'ble Supreme Cout in Central
Inland Water Transport Corporation Ltd. and another vs.
Brojo Nath Ganguly and another, 1986 (3) SCC 156.
22. In this respect, reliance placed by the respondent-
Corporation on the decision of the Co-ordinate Bench of this
Court in CWP No.211 of 2018, titled as Himachal Pradesh State
Electricity Board Limited and Others vs. Jagat Singh, decided
on 27.08.2019, is of no avail as the same is clearly
distinguishable. Therein, it has been laid that all identically placed
persons need to be treated alike by extending the benefit is
subject to certain exceptions of delay and laches and
.
acquiescence. With respect to the aforesaid principle, the learned
Division Bench therein had placed reliance upon the decision of
the Hon'ble Supreme Court in State of Uttar Pradesh vs. Arvind
Kumar Srivastava (2015) 1 SCC 347. However, a perusal of the
aforesaid authoritative pronouncement of the Apex Court reflects
that the aforesaid two exceptions would not apply when the
matter pertains to a Policy matter like a Scheme of regularization
as is in the cases at hand.
23. In so far as the plea of limitation/delay and laches is
concerned, the same is also liable to be rejected. As has already
been stated supra, the plea of petitioners is based on
discrimination which is violative of Article 14 of the Constitution of
India. In this regard, it would be appropriate to refer to the
decision of the Hon'ble Supreme Court in K. Thimmappa and
others vs. Chairman, Central Board of Directors, State Bank
of India and another, 2001 (2) SCC 259, wherein, it has been
categorically laid down that if there is an infraction of Article 14 of
the Constitution of India then petition cannot be dismissed on the
ground of delay and laches.
24. A plea of negative parity has been raised by the
respondent-Corporation. The same is rejected as the same does
.
not arise for consideration in the facts and circumstances of the
cases at hand.
25. For delayed regularization, petitioners cannot be blamed as
the same was to be done by the respondent-Corporation. In this
regard, reliance is placed on the decision of a Co-ordinate Bench
of this Court in CWP No.2735 of 2010, titled as Rakesh Kumar
vs. State of HP and others alongwith connected matters,
decided on 28.07.2010.
26. The stand of the respondent-Corporation that instructions
dated 12.12.2003, "in principle" was being followed by the
respondent-Corporation till its adoption in the year, 2006 is also
liable to be rejected. A perusal of the memorandum for
consideration of the meeting of the Board of Directors of the
respondent-Corporation, held on 18.09.2012, specially Item
No.120.12 categorically reflects that the instructions of the
State Government are not applicable to the employees of the
HRTC ipso facto, as such, the same are required to be placed
before the Board of Directors for consideration and approval.
A perusal of the said Item placed before the Board clearly reflects
that therein a proposal was mooted by the respondent-
Corporation to adopt the Contractual Employees Regulation
.
Policy of the State Government. In view of the aforesaid, it is
evident that the stand now being sought to be taken in the reply
that the instructions of the State Government ipso facto apply, is
contrary to the stated position hereinabove. The stand now taken
seems to be based on the convenience and suitability of the
respondent-Corporation. Moreover, in our considered view
Section 45 of the Road Transport Corporation Act, as stated
supra, prescribes the mandatory procedure required to be
followed. The same is being referred by way of an abundant
caution. In the cases at hand, we have not gone into the
question, as to whether the respondent-Corporation has followed
the procedure prescribed for amending the Rules in 2006 for the
reason that adjudication there upon will be of no consequence in
the cases at hand.
27. The recruitments in question, as has already been stated
supra, had been initiated in furtherance of approval accorded in
this regard in the 95th Board meeting held on 02.08.2003 prior to
issuance of instructions dated 12.12.2003 and its adoption by the
Board on 03.08.2006. Therefore, the petitions filed by the
petitioners, being similarly situate as their counterparts who had
been appointed earlier with respect to whom parity was being
.
sought, deserves to be allowed on this account also.
28. Even otherwise prior to 2010, there is no Regularization
Policy of the State which has been adopted by the respondent-
Corporation. Hence, on this account also the respondent-
Corporation will have to uniformly regularize contractual
appointees after one year.
29. In view of above discussion, we are of the considered
opinion that there is merit in the claim of petitioners and same is
accepted, whereas plea of the respondents-Corporation is
rejected being not sustainable. Petitioners are held entitled for
regularization from the date of completion of one year contractual
service after initial appointment, with all consequential benefits
from the due date. However, we are not awarding any interest
thereon, at this stage. The consequential benefits shall be
extended to the petitioners within one month from today, arrears
whereof shall be paid to the petitioners on or before 30.04.2024,
failing which the respondents-Corporation shall also be liable to
pay interest thereon at the rate of 6% per annum.
30. Accordingly, present petitions are disposed of in the
aforesaid terms, so also, the pending miscellaneous
.
application(s), if any.
( Vivek Singh Thakur)
Judge
09 November, 2023 (KS)
r to ( Bipin Chander Negi)
Judge
