Parveen Kumar And Others vs State Of Himachal Pradesh And ...
2023 Latest Caselaw 15749 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 2146 of 2019 Reserved on: 03.10.2023 Decided on: 09.10.2023.

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Parveen Kumar and others

..Petitioners Versus State of Himachal Pradesh and others

...Respondents __________________________________________________________ Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge

1 Whether approved for reporting? No

__________________________________________________________ For the petitioners : Mr. Sanjeev Bhushan, Senior Advocate, with Mr. Rajesh Kumar, r Advocate.

For the respondents : Mr. Pratush Sharma, Addl. A.G., with Ms. Priyanka Chauhan and Mr. Rahul Thakur, Dy. A.Gs., for respondent No.1.

Mr. Maan Singh, Advocate, for respondents No. 2 and 3.

None for respondent No.4.

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Satyen Vaidya, Judge By way of instant petition, petitioners have

prayed for following substantive reliefs:

i That appropriate writ order or direction may very kindly be issued and Annexure P-3 dated 06.07.2019 may very kindly be quashed and set-aside.

ii. That appropriate writ order or direction may very kindly be issued directing the respondents to

Whether reporters of Local Papers may be allowed to see the judgment?

regularize the services of the petitioners as per the regularization policy of the State on completion of three years service as contract employees from the due dates with all

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consequential benefits of pay, arrear and

seniority etc., in the interest of law and justice. iii. That directions may very kindly be issued to the

respondents to pay the emoluments to the petitioners on the similar pattern as is paid to other contractual employees of respondent Nos.

1 to 4 i.e. Basic pay of the post of Field Assistant + dearness pay and a fixed increment @ 3% per annum from the date of their engagement, by r further directing to pay the arrears from the date

of their initial appointment, in the interest of law and justice.

2. Indisputably, the petitioners are working as

Field Assistants in National Air Quality Monitoring

Programme (for short, "NAMP") under the aegis of the

Himachal Pradesh Pollution Control Board (for short, "The

Board") since the periods ranging w.e.f. 18.09.2010 to

30.10.2017. To be precise the dates of appointments of

petitioners are as under:

    Appointment                    of Dates
    petitioner(s)
    Petitioner No.1                   18.09.2010








    Petitioner No.2              09.11.2010

    Petitioner No.3              19.11.2010

    Petitioner No.4              16.05.2011




                                                      .

    Petitioner Nos. 5 & 6        24.07.2012

    Petitioner No.7              30.10.2017

3. It is also not in dispute that the petitioners have

been engaged through respondent No.4- National Council

& Technology Consortium (for short, "NCTC") under an

agreement dated 17.06.2010 executed between the Board

and the NCTC. As per terms of the agreement, the Board

has agreed to pay fixed amount to NCTC per annum and

in lieu thereof, the NCTC has agreed to provide manpower

for NAMP stations managed by the Board.

4. The above appointments are continuing since

long and in between the petitioners raised demand for

being regularized on the posts of Field Assistants in terms

of the regularization policy adopted by the Board and also

at par with the treatment given to similarly situated

employees.

5. As the brief background, it will be relevant to

notice that the petitioners in the first instance had

approached the erstwhile H.P. State Administrative

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Tribunal (for short, 'the Tribunal) by way of O.A. No.1039

of 2018 and claimed benefit of order rendered by the State

Administrative Tribunal in T.A. No.5592 of 2015, titled

Deepak Dogra and others vs. State of Himachal Pradesh

and another, decided on 21.12.2016. The Tribunal vide

order dated 29.05.2019 disposed of O.A. No.1039 of 2018

with a direction to the respondents/competent authority to

extend the benefit of the order passed in T.A. No.5592 of

2015 to the applicants therein (petitioners), in case they

were found similarly situated. In compliance to the

aforesaid direction, the Board considered the

representation of petitioners and rejected the same vide

impugned office order dated 6.7.2019 on the ground that

the status of petitioners herein was distinct than that of

the incumbents, who had obtained the benefit of directions

issued by the State Administrative Tribunal in T.A.

No.5592 of 2015. The distinction was drawn on the ground

that the petitioners were not directly employed by the

Board and hence there was no relationship of employer

and employee, whereas the beneficiaries of directions in

T.A. No. 5592 of 2015 had been employed by the Board

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and their services were regularized on the recommendation

of the Service Committee against the sanctioned posts in

the Board strictly as per the regularization policy dated

22.4.2016 of the State Government.

6. The case as set up by the petitioners is that in

the same Programme NAMP various other categories of

employees were engaged by the Board. All such

engagements and postings were through various Hydro

Electric Projects (for short. "HEPs") and were funded by

the projects themselves. The categories of employees as

engaged for Environment Monitoring Plans of various

HEPs were the beneficiaries of the directions issued by the

State Administrative Tribunal in T.A. No. 5592 of 2015. As

per the petitioners, they are similarly situated to the

categories of employees engaged by the Board under

Environment Monitoring Plans of HEPs as the said

category of employees were engaged by the Board for its

routine functions and the petitioners are also engaged in

discharge of the regular functions of the Board. In the case

of those employees, the payments of wages were released

by the respective HEPs, whereas, in the case of petitioners

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though their wages are released by the NCTC, but the

funds are provided by the Board. On the strength of such

assertion, petitioners claimed themselves to be on better

footing than the beneficiaries of the directions issued in

T.A. No. 5592 of 2015. It is also the case of the petitioners

that they are performed the same and similar duties as is

being performed by their regular counter-parts i.e. Field

Assistants in the Board.

7. The Board has contested the claim of the

petitioners by seeking to distinguish their case with the

beneficiaries of directions issued in T.A. No.5592 of 2015

on reiteration of the ground as taken for rejecting the

representation of the petitioners vide impugned office

order dated 6.7.2019 (Annexure P-3).

8. I have heard learned counsel for the parties and

have also gone through the records of the case carefully.

9. Learned Senior Counsel for the petitioners has

placed reliance on a judgment passed by this Court on

28.9.2023 in CWP No. 2074 of 2020 titled Rajeev Sharma

vs. Himachal Pradesh State Pollution Control Board

alongwith connected matters, to assert that while

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considering the case of similarly situated persons, this

Court has directed the Board to absorb the services of

such incumbents by placing them at par with the

beneficiaries in T.A. No. 5592 of 2015. On the strength of

said judgment, it has been contended that the case of

petitioners is also identical rather is on better footings and

they also deserve the same treatment as granted to the

petitioners in CWP No. 2074 of 2020 and connected

matters decided by this Court on 28.09.2023.

10. In order to assess the contentions so raised on

behalf of the petitioners, it becomes relevant to notice

certain facts involved in the above referred cases decided

by this Court on 28.09.2023. The Board had employed the

manpower for the Environment Monitoring Plans for

certain categories of HEPs in the State of Himachal

Pradesh. One category was called "bill base" employees

and the other was called "in kind" employees. The

distinction was drawn between the "bill base" and "in

kind" employees, firstly, on the ground that the "bill base"

employees were engaged by the Board, whereas, "in kind"

employees were employed by the project proponents.

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Secondly, in the case of "bill based" employees, the project

proponents transferred the funds to the Board towards

salary of "bill based" employees and the disbursement was

made by the Board, whereas in the case of "in kind"

employees, they were paid directly by the project

proponents.r

11. This Court has held the classifications so drawn

by the Board to be superfluous after placing reliance on

the judgment passed by Hon'ble Supreme Court in Nihal

Singh and others vs. State of Punjab and Others

(2013) 14 SCC 65.

12. The facts of instant case clearly suggest that the

Board requires the manpower for management of NAMP

stations and instead of employing the persons by itself, the

Board adopted a method to employ the manpower through

NCTC. The petitioners have specifically averred that they

were employed by the NCTC after a due selection process,

which fact has not specifically been denied by the

respondents including the Board. The terms of agreement

between the Board and NCTC clearly reveal that the Board

had bound itself contractually to pay lump sum amount

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per annum to NCTC in lieu of the manpower to be

provided by the NCTC for NAMP stations. It is further

revealed that the calculation of such payable amount was

made on the basis of per head payable amount to each

employee. The contract amount, thus, was calculated for

total 15 numbers of employees.

13. The Board has not denied that the petitioners

have been engaged for discharge of duties which are part

of routine and normal function of the Board. Evidently, the

Board holds the disciplinary control over the petitioners.

In the above circumstances, the distinction sought to be

drawn by the Board between the petitioners and the "bill

based"/ "in kind" employees is clearly superfluous.

14. The Board had itself recommended the

absorption and regularization of the "bill based" and "in

kind" employees to the Service Committee. It was the

Service Committee, which had recommended the

regularization only of "bill based" employees. While

contesting the cause of "in kind" employees, in CWP No.

2074 of 2020 alongwith connected matters, the Board had

tried to distinguish between the "bill based" and "in kind"

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employees on the grounds which were negated by this

Court vide judgment dated 28.09.2023.

15. It is not the case of the Board that the Board

does not require the Field Assistants for its routine

functions. This fact can otherwise be inferred from the

long tenure for which the petitioners have been working

with the Board. Merely, because the Board has taken the

services of NCTC for employing petitioners, their case

cannot be said to be different than the case of "bill based"

and "in kind" employees. In such view of the matter, the

petitioners are also entitled for the benefits of absorption

and regularization as granted by the Board to "bill based"

employees.

16. Accordingly, the instant petition is allowed. The

impugned office order dated 06.07.2019, Annexure P-3, is

quashed. The respondent-Board is directed to absorb the

services of petitioners in the Board initially on contract

basis and thereafter by way of regularization exactly in the

same manner as has been done in the case of "bill based"

employees. The entire process shall be completed by the

Board within three months from today. The petitioners

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shall be entitled to all consequential benefits notionally

save and except monetary benefits only for a period of

three years immediately prior to the filing of the petition.

17. The petition is accordingly disposed of, so also

the pending miscellaneous application(s) if any.

                    r                         (Satyen Vaidya)
                                                    Judge

    9th October, 2023
          (GR)