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Himachal Pradesh High Court · body

2009 DIGILAW 1240 (HP)

Rita Devi v. Secretary

2009-12-08

R.B.MISRA, RAJIV SHARMA

body2009
JUDGEMENT Mr.Rajiv Sharma. J The petitioner’s husband was employed on daily waged basis in the Indo-German Changer Project, Palampur w.e.f. 1993 to December, 2004. The Indo-German Changer Project, Palampur was a registered society. The Project was closed on 31.12.2006. 2. The petitioner has approached this Court seeking a direction to the respondents to give her employment on compassionate grounds. Mr. S.D. Gill, learned counsel for the petitioner has vehemently argued that the petitioner is entitled to employment on compassionate grounds as per Annexure P-1. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the petitioner’s husband was engaged on daily waged basis and the Project has been closed on 31.12.2006. He then contended that the petitioner’s husband has died on 2.1.2005 and the present petition is barred by delay and laches. We have heard the learned counsel for the parties and gone through the pleadings carefully. Petitioner was engaged on daily waged basis in a Project called as Indo-German Changer Project, Palampur. 3.The Project has been closed on 31.12.2006. The petitioner has made a representation for the first time as per the contents of the reply on 19.3.2009. It is settled law by now that the objective of granting employment on compassionate grounds is to permit the family to tide over the crises immediately after the death of the bread earner. The petitioner has not explained the delay in approaching the authorities from 2005 to 2009. Moreover, the Project has been closed and as per the law laid down by the Apex Court, the Court cannot direct the workman to be employed in a non-existent establishment. Their Lordships of the Hon’ble Supreme Court in State of H.P. through the Secretary (Rural Development) to the Government of H.P. Shimla vs. Ashwani Kumar and others, (1996) 1 SCC 773 held as under: “ 4.It is seen that when the project is completed and closed due to non-availability of funds, consequently, the employees have to go along with the closed project. The High Court was not right in giving the direction to regularize them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularize their services in the absence of any existing vacancies nor can directions be given to create posts by the State to a non-existent establishment. The Court would adopt pragmatic approach in giving directions. No vested right is created in temporary employment. Directions cannot be given to regularize their services in the absence of any existing vacancies nor can directions be given to create posts by the State to a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them in spite of non-availability of the work. 5.We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is set aside.” Similarly, their Lordships of the Hon’ble Supreme Court in Mohd. Abdul Kadir and another vs. Director General of Police, Assam and others, (2009) 6 SCC 611 have held that existence of post in temporary Scheme is co-terminous with the Scheme. Their Lordships have held as under: “13. The fact that the appellants were employed under the PIF Additional Scheme is not disputed. The duration of PIF Additional Scheme under which they are employed was initially two years, to be reviewed for continuation along with the original PIF Scheme. The said scheme is being extended from time to time and is being continued. If the temporary or ad-hoc engagement or appointment is in connection with a particular project or a specific scheme, the ad hoc or temporary service of the persons employed under the Project or Scheme would come to an end, on completion/closure/cessation of the Project or the Scheme. 14. The fact that the Scheme had been in operation for some decades or that the employee concerned has continued on ad hoc basis for one or two decades would not entitle the employee to seek permanency or regularization. Even if any posts are sanctioned with reference to the Scheme, such sanction is of ad hoc or temporary posts co-terminus with the scheme and not of permanent posts.15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with service, nor seek regularization in some other project or service. Even if any posts are sanctioned with reference to the Scheme, such sanction is of ad hoc or temporary posts co-terminus with the scheme and not of permanent posts.15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with service, nor seek regularization in some other project or service. (See Bhagwan Dass v. State of Haryana – 1987 (4) SCC 634, Delhi Development Horticulture Employees Union v. Delhi Administration - 1992 (4) SCC 99, Hindustan Steel Works Construction Ltd., vs. Employees Union - 1995 (3) SCC 474, UP Land Development Corporation vs. Amar Singh - 2003 (5) SCC 388, Madhyamik Shiksha Parishad UP v. Anil Kumar Mishra - 2005 (5) SCC 122, Secretary, State of Karnataka v. Umadevi - 2006 (4) SCC 31, Indian Council of Medical Research vs. K. Rajyalakshmi - 2007 (2) SCC 332, and Lal Mohammed vs. Indian Railway Construction Co. Ltd. - 2007 (2) SCC 513). 6.In view of this settled position, the appellants will not be entitled to regularization.” Accordingly, in view of the observations made hereinabove, the writ petition is dismissed.