Sh. Hardev Singh And Ors vs State Of Himachal Pradesh And Anr
2023 Latest Caselaw 13585 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No. : 502 of 2019 a/w CWPOA No. 4372 of 2019

.

                                          Reserved on : 04.09.2023

                                          Decided on         : 14.09.2023





     1. CWPOA No. 502 of 2019

     Sh. Hardev Singh and Ors.                                   ....Petitioners.





                                          Versus

     State of Himachal Pradesh and Anr.                          ...Respondents.

     2. CWPOA No. 4372 of 2019

     Ex. Sepoy Mehar Singh Minhas                                ....Petitioner.

                                          Versus


     State of Himachal Pradesh and Ors.                          ...Respondents.


     Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting? 1 No

For the petitioner(s) : Mr. Anil Kumar God, Advocate,

for the petitioners in CWPOA No. 502 of 2019, Mr. Mukul Sood, Advocate, for the petitioner in CWPOA No. 4372 of 2019.

     For the respondents          :       Mr.     Pushpender    Jaswal,
                                          Additional   Advocate General
                                          with Mr. Gautam Sood,    Mr.

     1     Whether reporters of the local papers may be allowed to see the judgment?









                                     Rahul     Thakur      and    Ms.
                                     Priyanka      Chauhan,    Deputy
                                     Advocate      Generals, for the
                                     respective respondents in both




                                                              .
                                     the petitions.





                          :          Mr. Sanjeev     Kumar    Motta,
                                     Advocate, for respondent No. 3-
                                     Commission in CWPOA No. 4372





                                     of 2019.
    Satyen Vaidya, Judge

Both these petitions have been heard and

are being decided together as common question of

facts and law are involved.

2. In CWPOA No. 502 of 2019, the following

prayers have been made:-

a) That the writ in the nature of mandamus,

appropriate writ, order or direction in nature thereof, directing the respondent to deem the petitioners to have been appointed w.e.f.

08.12.2002 for all purposes and intents

entitling the petitioners for benefits under CCS (Pension) Rules, 1972 as prior to issuance of notification dated 15.05.2003 with all the

consequential benefits and deduction of their CPF may kindly be stopped forthwith. And that may be converted into GPF account (Pension Benefits).

b) That the impugned Annexure P-9 may kindly be quashed and set aside in the interest of justice.

c) That to issue an appropriate writ, order or direction in nature thereof to the respondent department to extend to the petitioners the

.

benefits of judgment of this Hon'ble Court passed

in CWP No. 2059/2010, titled as Hirdye Prakesh Vs. State of H.P. and CWP No. 14614/2008, titled

as Vikram Chand Katoch Vs. State of H.P.

d) That the direction may kindly be issued to the respondents to offer fresh regular appointment

letter in favour of the petitioner No. 5 in the interest of justice.

3. In CWPOA No. 4372 of 2019, the following

prayers have been made:-

a) Direct the respondents to give the petitioner similar benefit which has been granted to

persons who were similarly selected and appointed and who had been granted relief in

OA No. 2303 of 2003, decided on 29.06.2004, Annexure P-4 and CWP(T) No. 14614 of 2008

Vikram Chand Katoch and others Versus State of H.P. and others decided on 24.07.2010 by

firstly appointed on contract basis and then on regular basis:

b) Direct the respondents to appoint the petitioner and give him the benefit as Assistant Librarian from February, 2002 instead of February, 2009 as granted vide order Annexure P-5 with all consequential monetary benefits and seniority;

c) Direct the respondents to decide the representation of the petitioner Annexure P-10 within a time bound period:

.

4. Petitioners in both the petitions are

Ex-servicemen. After their release from Indian Armed

Forces, petitioners registered themselves with

Ex-servicemen Employment Cell, Directorate of Sainik

Welfare, Hamirpur. The State Selection Committee of

Ex-servicemen Employment Cell had duly selected the

petitioners for the posts of Assistant Librarian and their

names were empaneled.

5. In the year 2002, requisition was received by

the Ex-servicemen Employment Cell from Director of

Elementary Education to sponsor the names of eligible

Ex-servicemen for appointment against the posts of

Assistant Librarian.

6. The Ex-servicemen Employment Cell,

Hamirpur on 18.11.2002 sponsored the names of

petitioners alongwith other candidates for issuance of

appointment letters to the petitioners within twenty

days.

7. Petitioners received appointment letters in

February 2009 and were appointed on contract basis as

.

Assistant Librarian.

8. The grievance of the petitioners is that

despite the clear instructions of the Government of H.P.

issued, vide notification dated 31.03.1990, the

appointment was not given to the petitioners within the

required period r to of twenty days. In similar situated

cases i.e. CWP-T No. 14614 of 2008, titled Vikram

Chand Katoch Vs. State of H.P. and ors. and CWP No.

2059 of 2010, titled Hirdey Prakesh Vs. State of H.P. and

ors., this Court has repeatedly held the right of Ex-

servicemen to be appointed within twenty days from the

date of sponsorship of their name(s) by the Ex-

servicemen Employment Cell. Petitioners represented to

the respondents for grant of similar treatment as was

given to the petitioners in above noted petitions, but

without success. Petitioners in CWPOA No. 502 of 2019

earlier also approached this Court by way of CWP No.

6856 of 2013, which was disposed of by Division Bench

of this Court, vide order dated 17.09.2013 with direction

to the respondents to consider the case of the petitioners

in light of the judgment passed in the case of Vikram

.

Chand Katoch. The case of the petitioners was rejected

by respondent No.2, vide impugned order, Annexure P-9.

9. Respondents in their replies have submitted

that after receipt of sponsorship of the names of

petitioners, the recruitment process was delayed. As per

respondents, vide letter dated 13.03.2003 of Department

of Personnel, it was conveyed that in order to ensure

transparency in the working of government, the entire

process of recruitment in different departments was

required to be reviewed. All the ongoing processes for

recruitment were halted. Thereafter, vide letter dated

08.10.2007, the State Government initially conveyed

approval for filling up 300 vacant posts of Assistant

Librarians on contract basis, which was later reduced to

200 posts. The process thereafter was initiated and

finally appointments were made in February, 2009.

10. I have heard learned counsel for the parties

and have also gone through the record of the case

.

carefully.

11. The issue as is involved in these petitions had

earlier been subject matter of CWP Nos. 2059, 2068,

2072, 2073, 2074, 2078 and 2079 of 2010. Hon'ble

Single Judge of this Court, vide judgment passed in all

r to the above-said matters on 26.07.2011 decided the issue

and held that there was a mandate to appoint Ex-

servicemen sponsored by Ex-servicemen Employment

Cell within twenty days from the sponsorship. Reference

was made to the circular dated 31.03.1990, issued by

the State Government. Finally, the petitioners in all

above petitions were held deemed to have been appointed

w.e.f within fifteen days from the receipt of their

sponsorship/nomination from Ex-servicemen

Employment Cell, entitling them for the benefits under

CCS (Pension) Rules, 1972, with all consequential

benefits as they were entitled prior to notification dated

15.05.2003.

12. Respondents have not disputed the fact that

the requisition for sponsorship of names of

.

Ex-servicemen was sent to Ex-servicemen Employment

Cell, Hamirpur, by respondent No. 2 in 2002. It clearly

implies that the vacancies against the posts reserved for

Ex-servicemen in the cadre of Assistant Librarian were

available. It is also not in dispute that the names of

petitioners

Employment Cell r were

to sponsored by

on 18.11.2002. Respondents Ex-servicemen

have

also not disputed the fact that vide circular dated

31.03.1990, it had been mandated to offer appointment

to Ex-servicemen within twenty days from the date of

receipt of sponsorship.

13. In CWP No. 2059 of 2010 and connected

matters decided by Hon'ble Single Bench of this Court

on 26.07.2011, the relief in identical circumstances

was granted on the basis of government circular dated

31.03.1990. That being so, petitioners were also entitled

to be offered appointment within twenty days from the

date of receipt of sponsorship of their names, which have

been sent by Ex-servicemen Employment Cell on

18.11.2002.

.

14. The reasons assigned by respondents for

delay in offering appointment are not at all satisfactory.

Even otherwise, it has been stated that in March, 2003,

some decision was conveyed by Department of

Personnel, for comprehensive review of the whole

processes with respect

process in r to different to interview and selection

departments of the State

Government. It is not the case that the petitioners were

to be offered appointment under General Category. They

had a special reserved category and the process of their

selection was also separate. The State Selection

Committee of Ex-servicemen Employment Cell had

already made the selection of petitioners. They were

simply to be offered appointment letters within twenty

days from the date of receipt of sponsorship from Ex-

servicemen Employment Cell. In the cases in hand, there

is no explanation, as to why, even till March 2003, the

appointment letters were not issued to the petitioners.

Further, there is no plausible explanation from

respondents regarding non performance of their duty for

a long period of seven years as the petitioners were

.

finally given appointments in February 2009.

15. It is the case of petitioners that the judgments

in Vikram Chand Katoch and Hirdey Prakesh (supra)

were implemented by respondents and the respondents

have not offered any denial to such fact In such view of

the matter, there

differently.

r to is no reason to treat the petitioners

16. Interestingly, the representation of the

petitioners has been rejected by respondent No. 2 on

entirely different ground as raised in the reply. In the

rejection order, Annexure P-9, it was simply stated that

the appointment of petitioners was purely on contract

basis and they were bound by the agreement executed

by them with the employer and for such reason, the

judgment passed in Vikram Chand Katoch case was not

applicable to them. The reasons for rejection of

representation of petitioners are wholly untenable. The

acceptance of employment on contract basis by

petitioners cannot be a ground to deny them the benefit

of the judgments in Vikram Chand Katoch and Hirdey

Prakash cases (supra). The contract employment was

.

adopted as a mode of initial appointment which later was

followed by regularisation of the petitioner.

17. In view of above discussion, both the petitions

are allowed. Petitioners shall be deemed to have been

appointed w.e.f. expiry of twenty days from the date of

receipt of their

sponsorship from

Employment Cell entitling them for all consequential r Ex-servicemen

service benefits except the actual monetary benefits for

the period between the dates of their deemed and actual

appointments for the reason that they have not worked

during such period.

18. These petitions are, accordingly, disposed of,

so also the pending miscellaneous application(s), if any.

                                                   (Satyen Vaidya)
    14th September, 2023                                Judge
          (sushma)