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Himachal Pradesh High Court · body

2009 DIGILAW 160 (HP)

ROOP SINGH v. STATE OF HIMACHAL PRADESH

2009-03-16

SANJAY KAROL

body2009
JUDGMENT Sanjay Karol, J. (Oral):-In the present writ petition the petitioner has prayed for the following reliefs: “(i) To regularise the applicants from the date of their initial appointment i.e. in the month of February-March, 1995, with all consequential benefits of pay, arrears, seniority, etc. etc. In the alternative, it is submitted that the respondents may very kindly be directed to regularise the applicants against the posts for which now letters have been issued offering the posts on contingencies basis in the interest of law and justice. (ii) That the impugned action of the respondents above stated may very kindly be quashed and set-aside to secure the ends of justice. (iii) That the respondents may very kindly be directed to pay interest @ 18% PA on the arrears. (iv) Exemplary costs, as provided in section 35-A of CPC may very kindly be awarded in favour of the applicants and gains the respondents.” 2. Respondent No. 2 issued requisition to the Regional Employment Exchange, Shimla, Himachal Pradesh, requesting for sponsoring the names of candidates for the appointment of Class-IV posts. In all, requisition for 40 posts was sent which were to be filled up in accordance with the applicable roaster. The petitioners’ names were sent by the respective Employment Exchanges. They were selected but however, were appointed only on daily wage basis. It is the grievance of the petitioners that since the requisition was for regular posts they could not have been appointed on daily wages. 3. For 28 similar posts another requisition was sent in November, 1995. 4. From the record it is evident that such of those persons whose names had been sent by the Employment Exchange, alongwith the petitioners name were also considered and selected by the Selection Committee but however were appointed on regular basis (Annexure A-6). 5. In the reply filed by the respondent it is not clear as to why appointment was offered to the petitioners on daily wage basis when the requisition was sent for regular posts. 6. Consequently on 7.1.2009 this Court had directed the respondents to file an affidavit. 7. In compliance of the same the Principal of the respondent-College has filed an affidavit stating that: “1. That during December, 1994 Total 40 posts of Class-IV were advertised for sponsorship of candidates from various Employment Exchanges to fill up these posts on regular basis. 6. Consequently on 7.1.2009 this Court had directed the respondents to file an affidavit. 7. In compliance of the same the Principal of the respondent-College has filed an affidavit stating that: “1. That during December, 1994 Total 40 posts of Class-IV were advertised for sponsorship of candidates from various Employment Exchanges to fill up these posts on regular basis. The interview was conducted by the duly constituted Selection Committee. In this interview, besides the sponsored candidates from the Employment Exchanges, those already working candidates in the institution on Contingency, Daily wage and Part time workers were also interviewed. The Committee applied the reservation roster and decided that already working candidates on Contingency, daily wage and part time be offered appointment on regular basis whereas those who are sponsored by the Employment Exchanges be appointed on Contingency/Daily wage basis, the proceeding of the Selection Committee are annexed herewith as Annexure R-1. 2. That in the month of November, 1995, another requisition was sent to the Employment Exchanges to fill up the 28 posts on regular basis and the interviews were conducted on 29.1.96 for filling up these posts. The Selection Committee interviewed each candidates and selection was made as per the reservation roster and merit basis. In this Selection also the selection Board decided that already engaged incumbents on daily/Contingency basis be appointed on regular basis and those candidates who are sponsored by the Employment Exchanges be appointed on daily wage basis. The copy of the proceeding is annexed herewith as Annexure R-2. 3. That it is pertinent to mention here that all the applicants/Petitioners stands regularized vide order No. HFW(MC)b(2)12/96 Dated 30.9.1997. The copy of this order is annexed as Annexure R-3. 4. That from the above stated position, it is clearly evident that the petitioners are those candidates who are sponsored by the Employment Exchanges and at that time they were junior to already working Contingent/Daily waged employees. The principle of first come and first serve has been followed with respect of the already in-service contingent/Daily wage paid servants, which the Section Committee in its wisdom at that time had followed which cannot be termed as discrimination with the candidates sponsored by the Employment Exchanges. The principle of first come and first serve has been followed with respect of the already in-service contingent/Daily wage paid servants, which the Section Committee in its wisdom at that time had followed which cannot be termed as discrimination with the candidates sponsored by the Employment Exchanges. Further for few periods they have worked on daily wage basis i.e. one or two years where after i.e. vide Annexure R-3 their services have also been brought at par with in service candidates on regular basis thereby eliminating the any cause of discrimination.” 8. That the petitioners were given employment on daily wage basis is not in dispute. The stand taken, however, is that the petitioners were so offered employment as the Selection Committee in its wisdom had thought it fit to accommodate candidates already working in the institution on contingency, daily wages and part-time basis. The method adopted was totally against all canons of law. 9. There cannot be any appointment to public post except in accordance with law. The respondents could not have accommodated/adjusted already appointed persons against the posts for which the requisition was sent. The reply is silent as to whether the names of such working candidates was in fact sponsored by the Employment Exchanges. The position does not appear to be so. The petitioners have not assailed their appointment for the simple reason that there were 40 regular posts against which petitioners were offered appointment on daily wages. It is not that no sanctioned post was lying vacant. 10. Even in November, 1995, when another requisition for 28 posts was sent, the respondents adopted the same procedure. 11. It is not the case of the respondent that the petitioners were not entitled to appointment on regular basis due to the reservation roster as applicable to those candidates whose names had been sponsored through the Employment Exchanges. It is also not the respondents case that petitioners were otherwise not ineligible for appointment on regular basis. The method adopted by the respondent to accommodate persons other than the petitioners is definitely illegal. The principle of “first come and first serve” is not applicable in the present case as there is no parity with the persons already working on contingency, daily wages and part-time basis with the persons to be newly selected and thereafter appointed. The method adopted by the respondent to accommodate persons other than the petitioners is definitely illegal. The principle of “first come and first serve” is not applicable in the present case as there is no parity with the persons already working on contingency, daily wages and part-time basis with the persons to be newly selected and thereafter appointed. Moreover, there is no whisper in the affidavit that the persons working on contingency, daily wages and part-time basis, have been selected and appointed as such by any Selection Committee by calling their names from the Employment Exchanges. It is not the case of the respondents that these regular posts were to be filled up by the already appointed persons. Had it been so then the respondents would not have sent the requisition requesting for sponsoring the names of candidates to the Regional Employment Exchange. These posts had to be filled up by only such of those candidates whose names had been sponsored by the Employment Exchanges. It is also not the case of the respondents that the Government had relaxed the norms of appointment. Hence, the entire procedure adopted was illegal. There cannot be any back door entry to public appointment. 12. Under these circumstances the respondents are directed to regularise the appointment of the petitioners from their date of first appointment and also pay all consequential benefits. 13. The present petition is disposed of with the aforesaid observations. No other point emerges.