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2009 DIGILAW 1153 (HP)

PAWAN DEV v. STATE OF H. P.

2009-11-26

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.-By medium of this petition, the petitioners are seeking directions to the respondents to regularize their services. 2. Mr. Dharamvir Sharma, learned counsel for the petitioner has vehemently argued that his clients had already completed more than 8/10 years continuous service and have completed 240 days in each calendar year. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the engagement of the petitioners was seasonal in character. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. The petitioners are working in Government Sericulture Centre Ladda w.e.f. 1.1.1988, 1.12.1991, 1.12.1989 and 1.1.1991. Petitioners have placed on record statements showing the month wise mandays chart of the services rendered by them with the respondent-department. The mandays chart of petitioner No. 1 reveals that he had been continuously working w.e.f. 1996 till 2007 and had completed 240 days in each calendar year except in the year 1996 and 1998. In the year 1996, he has completed 233 days and in 1998, he has completed 228 days. Petitioner No. 2 had been working continuously with the respondent-department w.e.f. 1997 up to 2007. He had put in 240 days in each calendar year except in the year, 2000. He has worked for 227 days in the year, 2000. Petitioner No. 3 had been working continuously with the respondent-department w.e.f. 1996 up to 2007. He has also completed more than 240 days in each calendar year except in the year, 1996 and 2000. In 1996, he has completed 223 days and in 2000, he has completed 228 days. Petitioner No. 4 had been working continuously with the respondent-department w.e.f. 1996 up to 2007. He has completed 240 days in each calendar year except in 1996, 1998 and 2000. He has worked for 210 days in 1996, 216 days in 1998 and 205 days in 2000. Similarly, petitioner No. 5 had been working continuously with the respondent-department since 1996 up to 2007. He has completed more than 240 days in each calendar year except in 1996, 1998 and 2000. He has worked for 217 days in 1996, 224 days in 1998 and 205 days in 2000. 5. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the appointment of the petitioners was seasonal in character. This statement cannot be accepted. He has worked for 217 days in 1996, 224 days in 1998 and 205 days in 2000. 5. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the appointment of the petitioners was seasonal in character. This statement cannot be accepted. The perusal of mandays chart reveals that the petitioners had been working almost for more than 300 days except in the years, as mentioned hereinabove where there is shortage of few days for completion of 240 days. The Court is of the considered opinion that the respondents ought to have considered the cases of the petitioners for regularization after taking into consideration that they had worked continuously for more than 8/10 years and had completed more than 240 days in each calendar year except for shortage of few days, as mentioned hereinabove. The shortage of few days should have been overlooked by the respondents by taking a reasonable view instead of taking a mechanical approach. Prima facie, it appears that the petitioners have been given fictional breaks to prevent them from completing 240 days in each calendar year. It is settled law by now that the employer can not give fictional breaks to deprive the workman from seeking regularization. 6. Their Lordships of the Hon’ble Supreme Court in Mohd. Abdul Kadir and another versus Director General of Police, Assam and others, (2009) 6 Supreme Court Cases 611 have held as under: “18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and reappointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, coterminous with the Scheme. The Circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be quashed.” 7. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to consider the cases of the petitioners for regularization by taking into consideration their continuous service for 8/10 years. The deficiency of few days, as noticed above as per the mandays chart, shall be condoned by the respondents. The needful be done within a period of ten weeks from today. No costs.