Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 296 (HP)

ARPANA BALI v. STATE OF HIMACHAL PRADESH

2013-04-10

DHARAM CHAND CHAUDHARY

body2013
JUDGMENT : Dharam Chand Chaudhary, J. 1. Challenge herein is to the office order dated 2.3.2009, Annexure P-13, whereby the services of the petitioner as Lecturer Music (Vocal) has been regularized w.e.f. 31.12.2008 on notional basis, however, restricting the financial benefits from the actual date of joining duties as such by her. Challenge is that she had completed eight years service on contract basis as on 10.6.2006, however, denied the regularization from the due date and has been discriminated against the similarly situated persons. 2. Consequently, she has filed this writ petition with the following prayers:- "i) That the action of the respondents not counting the service period of the petitioner w.e.f. 23.3.99 to 15.5.99 towards seniority of the petitioner be declared illegal, unjust and unconstitutional. ii) That the respondents be directed to count service period of the petitioner w.e.f. 23.3.99 to 19.5.99 for all intents and purpose. iii) That the respondent be directed to regularize the services of the petitioner w.e.f. 10.11.2006 when the petitioner completed her 8 years of service on contract basis. iv) That the respondents be directed to modify the regularization orders dated 2.3.2009 Annexure P-15 to the extent that the services of the petitioner be regularized w.e.f. 10.11.2006 or say 31.12.2006 instead of 31.12.2008 after completion of 8 years of service. v) That the respondent be directed to pay the arrears of salary w.e.f. 31.12.2006 till 30.11.2008 with interest @ 15% per annum." 3. The stand of the respondent-State as emerges from the reply to the writ petition in a nut shell is that there was break in the service of the petitioner w.e.f. 22.3.1999 till 19.5.1999 and as she was re-engaged on 20.5.1999, therefore, having not completed eight years of continuous service on 10.11.2006, her services could not be regularized like those who had completed eight years of continuous service as on 10.11.2006. 4. Having gone through the record of this case and taking into consideration the submissions made on both sides, the dispute inter se the parties is not much as the only point in issue, which needs adjudication is as to whether the period w.e.f. 22.3.1999 to 19.5.1999 in the given facts and circumstances of this case has to be treated as break in service or not. If the answer to this poser is in negative, whether the petitioner had served the respondent-department as lecturer on contract basis for a continuous period of eight years as on 10.11.2006 being initially appointed as such vide order dated 10.11.1998, Annexure P-4 and resumed duty as such on 11.11.1998. 5. Admittedly, she was appointed on contract basis as Lecturer Music (Vocal) and posted as such in Government Girls Senior Secondary School, Chamba vide appointment letter dated 10.11.1998 Annexure P-4. Her appointment as such was valid upto 28.2.1999 or her replacement by fresh appointment or posting on transfer/promotion, whichever is earlier. The petitioner apprehending her removal from the service after 28.2.1999, approached the erstwhile Administrative Tribunal vide OA No.610/98. In that matter, the following order was passed on 25.2.1999:- "Issue notice pending admission. The learned Additional Advocate General waives service of notice on behalf of respondents State. Reply be filed within six weeks. List thereafter. In the meanwhile the respondents are directed to allow the applicant to work in the present School, in case there is a post and no regular hand has been appointed either on fresh appointment or by transfer." 6. The petitioner, therefore, was allowed to continue even beyond the period of 28.2.1999 as in terms of the orders passed by the erstwhile Administrative Tribunal, she was allowed to work in the same post and in the same school subject to availability of post and no regular hand having been appointed either on fresh appointment or by transfer. 7. The respondents seem to have transferred one Smt. Chanderkanta, Lecturer Music (Instrumental) against the post of Lecturer Music (Vocal) occupied by the petitioner and consequently the petitioner was relieved of her duty from the School by respondent No.3 on 22.3.1999 in the afternoon vide order Annexure P-5. Such act on the part of the respondent-department has led in filing contempt petition No.28/91 (sic 28/99), in which the order Annexure P-6, which reads as follows, came to be passed on 14.5.1999: "Notice be issued to the respondents contemnor as to why the contempt proceedings be not initiated against them for not complying the orders of this Tribunal. The reply be filed within six weeks. List thereafter. In the meanwhile the respondents contemnor may take steps to mitigate the contempt." 8. The reply be filed within six weeks. List thereafter. In the meanwhile the respondents contemnor may take steps to mitigate the contempt." 8. Consequently, the petitioner was allowed to resume duty on 20.5.1999 as is apparent from certificate Annexure P-7 on the record of this writ petition. Thereafter, she continued in discharging her duties as Lecturer Music (Vocal) in Government Girls Senior Secondary School, Chamba. 9. The petitioner claims that the break in service w.e.f. 22.3.1999 to 19.5.1999 is on account of the act, conduct and deeds attributable to the respondents and not on account of any fault on her part as according to her the post of Lecturer Music (Vocal) and Lecturer Music (Instrumental) are two separate and distinct posts under the Recruitment and Promotion Rules, therefore, Smt. Chanderkanta, who was Lecturer Music (Instrumental) could have not been transferred and posted against the post occupied by her. The case so pleaded by the petitioner in the writ petition reads as follows:- "8. That the orders passed by the Ld. Administrative Tribunal had salutary effect on the mind of the respondents and accordingly the respondent No.4 called on the petitioner to join the duty on 20.5.99 and the certificate to this effect issued by the respondent No.4 is attached as Annexure P-7 for the kind perusal of this Hon'ble Court. It will be relevant to state here that the post of Lecturer in Music have two branches i.e. Instrumental and Vocal and the respondents knew it very well that a Lecturer in Instrumental Music could not replace an incumbent who was Lecturer in Vocal Music as per provisions of R&P Rules notified by the State Government itself. Thus the termination of the petitioner w.e.f. 23.3.99 to 29.5.99 was ipso facto an illegal act and the petitioner is bound to be treated on duty during this period when she was illegally terminated by the respondent No.4 and she is entitled to be continuously in service w.e.f. 11.11.98 onwards till date of completion of her 8 years service i.e. 31.12.2006 for all intents and purposes." 10. The reply thereto in para 8 on merits also reads as follows:- "8. That in reply to the contents of this para it is submitted that the petitioner was re-engaged in view of the directions of the Erstwhile Administrative Tribunal." 11. The reply thereto in para 8 on merits also reads as follows:- "8. That in reply to the contents of this para it is submitted that the petitioner was re-engaged in view of the directions of the Erstwhile Administrative Tribunal." 11. The respondent-department, therefore, did not dispute the aforesaid contentions in the writ petition and rather opted not to offer any comments thereto. The respondent- department has, therefore, admitted such contentions as correct in the writ petition. It would thus not be improper to conclude that the two posts i.e. Lecturer Music (Vocal) and Lecturer Music (Instrumental) are separate and distinct within the meaning of Recruitment and Promotion Rules and as such in terms of the order ibid passed by the erstwhile Administrative Tribunal in OA No.610/99, she could have not been replaced by a lecturer teaching the subject i.e. Music (Instrumental). It is for this reason when order Annexure P-6 in contempt petition No.28/99 was passed by the erstwhile Administrative Tribunal, the petitioner was allowed to join duties in the School on 20.5.1999, in the forenoon. No doubt, she has been allowed to join duties pursuant to the orders passed by the erstwhile Tribunal, however, the respondent-department is not justified in claiming that the petitioner had to be re-engaged only on account of the directions issued by the erstwhile Administrative Tribunal. 12. As a matter of fact, the petitioner, who was working on contract basis and as per order dated 25.2.1999 passed by the erstwhile Administrative Tribunal in OA No.610/99, should have been allowed to continue in the same school subject to availability of post and no regular hand is deployed either on fresh appointment or by transfer as Lectuer Music (Vocal) and as Smt. Chanderkanta, transferred against the post occupied by the petitioner was not Lecturer Music (Vocal), and rather Lecturer Music (Instrumental), therefore, the petitioner is absolutely justified in claiming that her removal from service on and w.e.f. 22.3.1999 was illegal because she could have been replaced only by Lecturer Music (Vocal) either on fresh appointment or by transfer. Not only this, but the respondent-department allowed her to resume duties on 20.5.1999 may be consequent upon the directions issued by the erstwhile Administrative Tribunal in the contempt petition. 13. Not only this, but the respondent-department allowed her to resume duties on 20.5.1999 may be consequent upon the directions issued by the erstwhile Administrative Tribunal in the contempt petition. 13. The facts, however, remain that the period w.e.f. 22.3.1999 to 19.5.1999 cannot be treated as break in her service and rather has to be counted towards continuity in service and seniority, if not for the purpose of salary. If it is so, the petitioner had completed eight years continuous service as on 10.11.2006. In reply to the case she set out in this writ petition qua regularization of her service from 10.11.2006/31.12.2006, the stand of the respondent department reads as follows:- "10. That the contents of this para are admitted in view of Annexure P-11 being a matter of record. It is submitted that the services of all those incumbents who had completed eight years of continuous service were regularized w.e.f. 10.11.2006. It is further submitted that since there was break in the services of the petitioner, hence, her services could not be regularized in contravention of the policy of the Government. xxx xxx xxx 14. That the contents of this para are wrong, hence denied. It is submitted that there was break in the service of the petitioner, therefore, her services cannot be regularized w.e.f. 10.11.2006 or 31.12.2006." 14. This court has already concluded that the period from 22.3.1999 to 19.5.1999 cannot be treated as break in service of the petitioner. She had thus completed eight years of continuous service as on 10.11.2006. The respondent-department as per reply to the writ petition hereinabove has regularized the services of all those who had completed eight years of continuous service as on 10.11.2006. No doubt, learned Additional Advocate General has emphasized that the service of contractual appointee are being regularized in terms of the policy being framed by the respondent-State from time to time and as her case was covered under the Policy Annexure-II to the written instructions placed on record, therefore, her services have rightly been regularized w.e.f. 31.12.2008 vide impugned order Annexure P-13 in the present writ petition. 15. True it is that as per the policy dated 9.6.2005, Annexure-I, the services of those contractual appointees like the petitioner, who had completed eight years of service on 31.12.2004 and those likely to complete eight years of service as on 31.12.2005 had to be regularized w.e.f. 1.1.2005 and 1.1.2006 respectively. 15. True it is that as per the policy dated 9.6.2005, Annexure-I, the services of those contractual appointees like the petitioner, who had completed eight years of service on 31.12.2004 and those likely to complete eight years of service as on 31.12.2005 had to be regularized w.e.f. 1.1.2005 and 1.1.2006 respectively. The petitioner admittedly had completed eight years of service after 31.12.1005 i.e. 10.11.2006. This Court, however, is not in agreement with the submissions that the case of the petitioner being not covered under this policy and that only those contractual appointees having completed eight years of service as on 31.12.2004 or 31.12.2005 have been regularized for the reason that as per the own stand of the respondent-department in the reply to the writ petition, the services of those incumbents, who had completed eight years of continuous service as on 10.11.2006 were regularized and as the petitioner had also completed such services as on 10.11.2006, therefore, her services have also been regularized w.e.f. 10.11.2006/31.12.2006. The non-regularization of her services leads to the only conclusion that she has been denied the benefit of regularization from 10.11.2006/31.12.2006 illegally, arbitrarily and rather discriminating against similarly situated persons on account of there being break in her service which stand of the respondent department has not been approved by this Court as per the findings recorded hereinabove and rather has been held as illegal. It has further been held that the period w.e.f. 22.3.1999 to 19.5.1999 cannot be said to a break in her service and rather has to be counted towards the continuity in service and seniority. The petitioner, therefore, is entitled to regularization of her services on the completion of eight years of service i.e. 10.11.2006. 16. This court is also not satisfied with the arguments that after completion of eight years of service by the petitioner, she has rightly been considered as per the policy dated 9th September, 2008, Annexure-II, for the reason that as per this policy, the services of those incumbents, who had completed eight years of continuous service as on 31.3.2008, were to be regularized. The petitioner, however, had already completed eight years of service as on 10.11.2006, therefore, was entitled to be considered for regularization immediately thereafter having acquired the requisite service well before 31.12.2008, and during the currency of the policy dated 9.6.2005, Annexure-I referred to hereinabove. 17. The petitioner, however, had already completed eight years of service as on 10.11.2006, therefore, was entitled to be considered for regularization immediately thereafter having acquired the requisite service well before 31.12.2008, and during the currency of the policy dated 9.6.2005, Annexure-I referred to hereinabove. 17. There is again no substance in the arguments addressed on behalf of the respondent-State that there was no policy in existence during the year 2006 or 2007 and that the petitioner could have only been considered on coming into being the new Policy viz the policy dated 9th September, 2008 for the reason that in a bunch matter of daily wagers (CWP No. 2735 of 2010, titled Rakesh Kumar vs. State of H.P. & Others and its connected matters) decided by the Principal Bench of this Court vide judgment dated 28.7.2010, while holding that the Policy of 2000 was in existence till the new one was introduced on 9th June, 2005, the daily wagers, who had acquired the requisite number of working years in the interregnum were also held liable to be brought on work charge establishment as per the old policy framed in the year 2000. Therefore, applying these principles in the present case, the services of the petitioner should have been regularized on completion of the eight years of service. 18. The upshot of the above discussion would be that the petitioner is entitled to be regularized as Lecturer Music (Vocal) w.e.f. 1.1.2007 instead of 31.12.2008, however, only on notional basis from the said date and entitled to the actual financial benefits from the date she has joined as Lecturer Music (Vocal) on regular basis pursuant to impugned order Annexure P-13. The impugned order is hereby ordered to be modified, accordingly. 19. Accordingly, there shall be a direction to the 2nd respondent to order the regularization of the petitioner on notional basis w.e.f. 1.1.2007, within a period of two months from the date of production of a copy of this order by the petitioner before the 2nd respondent. However, the due and admissible monitory benefits be restricted from the date of she had joined duties pursuant to the office order dated 2.3.2009, Annexure P-13. 20. With these observations, the writ petition stands disposed of, so also the pending application(s), if any.